HomeMy WebLinkAbout1981-0367.Hill.82-05-27-
IN "HE iNATTER CF AN AREITZATION
ijnder
THE CROWPI EMFLOYEES COLLECTIVX BAXGAINING ACT
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3BEU (5. Hill;
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AWARD
The Grievor Mrs. E. Hill began employment with the Ministry
in 1972 as a part time employee in the Atikokan store. She became a full
time Clerk II on about May 1973 and proceeded through the ranks to Clerk
IV, the Assistant Manager position,, which she held in December of 1980.
On December 5, 1980 she was'arrested and charged with four
thefts. She was suspended with pay for a short period and then without
pay pending the disposition of the charges. On April 22, 1981 she pleaded
guilty to four counts of theft under S200.00 and was granted a conditional
discharge (six months). On May 27, 1981 she was discharged from her
employment. On June 8, 1981 she filed a grievance (Exhibit 1) alleging
that she had been dismissed without just and sufficient cause.
Atikokan is a~ town of about 5,000 persons situated between
Fort Frances, Rainy River and Thunder Bay. The nearest full-time
liquor store to Atikokan is some 90 miles away in Fort Frances.
There are agency stores 30 to 40 miles away but these are only open
during the Sumner hours. The store is a C store which became a self
serve store in 1978.
Factually, the 'case presented to this Board is not particularly
difficult. Normally where an employee, particularly in the position of
Assistant Manager, had been involved in four thefts the Board would have
no difficulty in upholding a discharge. The complicating factor in
this case is the presence of medical evidence showing that the Grievor
was suffering from a mental illness at the time of the four thefts,
a symptom of which was a compulsion to steal. In order to adequately
deal with the relevance of this evidence it is necessary to detail
the evidence given by the individuals,who attended at the hearing.
Charles Thomas a former police officer, indicated that tke
Atikokan store employed three persons. In particular there was the
witness who was full time, the Manager, Mr. Sanders, and the Grievor.
Mr. Thomas indicated that he was aware as early as 1977 of thefts in
the stare. These were described as stock shortages and would appear
when the amount of money remaini,ng in the store did not tally with
the amount of liquor which had gone from the store. It was his
evidence that he discussed the problem with his Supervisor and with
the Manager on a number of occasions and became very concerned that
i nothing was done because disappearances reflected upon the honesty
of the few staff who worked in the store. Eventually he persuaded
the Supervisor to begin an investigation and the Special Branch of
the Ontario Provincial Police became involved. On November 27, 1980
the Grievor was seen to take $46.10 from a customer and failed to
ring the transaction up on the cash register. On November 28 after
selling two bottles of liquor to a customer she rang up a"no sale"
and eventually pocketed the money. On the same day she rang up a
sub-total on the cas,h register and took the proceeds of a 25,ounce
bottle sold to another customer. Finally on December 5 instead oft ringing
up a particular sale she again rang up a"no sale"and apparently Pocketed
the proceeds.
It was Mr. Thomas' evidence that he had worked four years
with the Grievor and had never had any real discussion with her concerning
any problems she might have been having. She normally seemed to be in
good humor, did her work well, but occasionally did leave things go to
the following day or later. It was his view that in the fall of 1980 she
seemed to be a lot more jolly and happy. He also indicated that if things
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were going well with her she would be in good spirits if not she might
withdraw and not speak to him for some time.
The evidence of the Grievor was that she is 41,married
with four children. Her husband has a responsible position in which
he is employed full .time. Her staff rating reports for her period
of employment with the Ministry (Exhibit 5) are uniformly good. It
was her evidence that although she remembered the theft of December 5,
1980 which led to her arrest, she had no real recall of any other
incidents. As an employee in the store she was aware of losses and
was aware that they were increasing as time went on and had in fact
talked to a Supervisor Mr. Nicoll and others about them. I might
indicate here that evidence concerning stock shortages indicates that
in the period April /78 to March /79 the store was short $2,426.95; in
the period from April /79 to March /80 the store was short approximately
$4,033.00. The Grievor indicated at the hearing that she had no reason
to believe the other employee Mr. Thomas was involved in thefts nor that her
immediate Supervisor Mr. Sanders was so involved. Accordingly, as she indicated
"I guess it must have been me." She also indicated that she was prepared
to make restitution for these losses, although in all candor she could
not recall having taken the money.
It was her evidence that her marriage had been in some difficulty
for a couple of years prior to December 1980. She and her husband had done
a fair amount of fighting and the fighting seemed %o be.getting worse at
the end. She was not eating or sleeping well, was very sharp with her
children, was argumentative, had bad dreams, experienced a loss of sexual
interest, and tended to forget silly things. In addition, she was drinking
and smoking ,too much during the period.
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Following her arrest she went to see her gynecologist and
discovered that she was pregnant. Because she had four children she
and her husband decided that she would have a therapeutic abortion
which occurred in January 1981. By February of 1981 she was,as she put
it "right out of it" and was having difficulty functioning at all. She
went and saw Dr. Reid in Thunder Bay and was referred to a psychiatrist
Dr. Kajander. Dr. Kajander saw her and treated her for an endogenous
depression and she began to recover quickly. Her reason for not
consulting her family physicia.n in the town of Atikokan was that he
in is in a position of supervising her husband's employment and she did
not wish him to know the full details of her medical problems.
Donald E. Hill, gave evidence that he has
been married to the Grievor for 23 years. In the two years prior to
1980 she changed considerably. When they were first married she was
extroverted, happy-go-lucky and talkative and in the two years prior
to the arrest she became quite difficult. She would experience highs
and lows and might be quiet for' several days,not talking to him at all.
While she had never been an exceptional housekeeper the quality of her
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attention to this task deteriorated substantially. He did not contemplate
a psychiatrist or marriage counsellor and assumed that she 'was going
through the menopause. He indicated that the state of the marriage
had reached serious proportions by the summer of 1979. She was also
becoming quite forgetful,particularly in the fall of 1980.
The final evidence to be considered is that of Dr. Kajander.
This evidence was received over the objection ?f counsel for the employer
which objection is as follows. On December 21, 1981 at the first date
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of hearing,counsel for the Grievor filed four medical reports prepared
by Dr. Kajander. These were dated February 3, April 7, November 26 and
December 7, 1981. It was Mr. Morand's position that the Grievor had
elected to proceed on the basis of medical reports and was barred from
calling. the doctor as a result. It was the ruling of the Board that although
the reports were present as evidence, that did not necessarily prevent the
calling of a physician, although that might ordinarily be the case. At the
date of the adjournment of the first day of hearing, the adjournment
was granted on the basis that the Union sought to call the doctor and
i that the Employer would in all probability call medical evidence in
reply. Accordingly it was the ruling of the Board that Dr. Kajander
would be allowed to give her evidence viva vote. --
Following her initial training in medicine and psychiatry in
Europe, and post-graduate studies in psychiatry at Gottingen University,
Dr. Kajander worked for some time in Finland as a psychiatrist. In 1952
she came to Canada and after qualifying in Canada as a specialist in psychiatry,
worked at the Queen Street Mental Centre in Toronto. In 1957 she became
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Director of the Mental Health Clinic at Port Arthur as it then was, and
proceeded to ,build up the first psychiatric comnunity,services in Northwestern
Ontario. In 1958 she left the Mental Health Clinic and became the first
private psychiatrist in the geographical area. Her evidence was given as an
expert in psychiatry, having practiced privately for 24 years. She is
currently President of the Ontario Psychiatric Association.
It was her evidence that endogenous depression is the depressive
phase of manic-depressive psychosis it is a form of mental illness which
effects approximately 0.5 percent of the population (the same as diabetes).
It is to some extent hereditary and its onslaught is not triggered by any
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particular incident. Normally a patient who is in this condition will go
through a cycle of approximately 18 to 24: months unless treated, during
which time the patient slides into the depression and will eventually
come out of it. The chance of the depression occuring again in the same
patient.varies considerably although the later in life the first depression
occurs the less likely is there to be a recurrence.
In addition .if a recurrence
does happen the patient is normally alerted to the symptoms and will seek
treatment. Treatment in this case is normally through the use of anti-
depressant drugs and relief can be seen in as short a time as one to two
t weeks. Indeed one of the problems with treating the problem is that
patients begin to feel so much better that they stop taking the drugs.
One of the accompanying problems, fortunately one which does
not occur in the majority of cases is a compulsion to steal. It is
unlike the situation which is involved in kleptomania in the sense that
kleptomania as inel,egantly described may well be a life-long problem.
Psychiatrists have some difficulty explaining why so few of the persons
suffering from endogenous depression exhibit the symptom of compulsion
to steal. There is some psychiatric evidence to suggest that patients
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do it to ward off perceptions of change. Other symptoms of the condition
include irritability, withdrawal from others, lapse of memory, concentration
disturbances, occasional loss of minor motor skills, and problems with sleeping.
Iith respect to the condition of the Grievor, Dr. Kajander saw
her in February of 1081, two months after her arrest. At that time she was in a
c.risis situation which Dr. Kajander recognized as endogenous depression. She
looked badly, and was very badly depressed. She indicated to the doctor that
her depression had started several mnths before the pregnancy and referred to
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other symptoms which the doctor recognized as consistent with the condition.
She imediately prescribed an anti-depressant drug and saw the Grievor
again on March 9, 1981 and March 30, 1981.During this period the Grievor
had stopped taking medication and was put back on it. At the time of the
hearing,she was almost finished with the medication and in the view of
Dr. Kajander was cured. According to Dr. Kajander, the medical condition
of the Grievor was not recognized as soon as it should have been, something
which often occurs in outlying areas where doctors occasionally have difficulty
handling' the broad range of problems presented to them. It was her view
that the Grievor is honest and hard working and has regained her health. The
symptoms presented by the Grievor to the doctor and to this Board were, she
indicated,totally consistent with an endogenous depression. She was unable
to indicate when this might have started.but given the normal cycle of 18
t0 24 months it was consistent with the theory that ,it existed during the time
of the defaults. Clearly in our view it existed at the time of the four
thefts which were the cause of the dismissal and were proved by evidence
at the hearing. Dr. Kajander indicated that the Grievor might well have
been involved in thefts and have forgotten about it reasonably quickly. She
indicated that the compulsion present in these cases is a very strong one
but was unable to'say whether a person could control the compulsion until
a proper opportunity for stealing occurred.
Dne of the issues that arose was whether or not the depression
suffered by the Grievor might have been a reactive depression. It was
suggested that this type of depression would, have occurred if the Grievor had
been involved in thefts and had become sufficiently concerned about her
involvement that she entered into a depression. It was the evidence of
Dr. Kajander that the symptoms of reactive depression are somewhat different
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in the sense that in the first place the effect on the sleeping pattern
is somewhat different. In the second place a person in a reactive depression
is usually able to identify the incident which triggered the depression
and in this case the Grievor could not. In the third place in reactive,
depression there is considerably less concentration or memory loss than
exists in the case of endogenous depression and in the case of the Grievor.
Accordingly it was the opinion of Dr. Kajander that this was not a situation
of reactive depression.
i. To summarize the force of her evidence it appeared to us that
at the time of the four thefts referred to above, the Grievor was exhibiting
symptoms of endogenous depression, even though at the time she was able to
realize that she was stealing and go through a reasonably complicated process
to do so. The more difficult question is what is the Board to do about it?
We treat the case as one in which four thefts in the late fall of 1980 were
proved. With respect to the total losses in 1979 and 1980 these have not been
shown to have been caused by the Grievor. Her assumption that it must have been
her, given that she does not recall taking the money cannot be an admission of
,' theft. Thus whatever suspicions we have do not give rise to a conclusion
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that "clear and convincing evidence" has been provided. It is quite possible
as well that if her activity was behind these losses, her medical condition
was the source of the trouble, a matter upon which we need not comment.
In criminal law, the basic question which arises in cases of this
sort is whether or not the person who is charged rith theft either has the
specific intent necessary to constitute the crime, i.e., to deprive the owner
of property.or satisfies section 16 of the Criminal Code by having been insane
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at the time of the offence and consequently subject to indefinite incarcer-
ation at Her Majesty's pleasure. Legally those who have a compulsion to
steal or who are aware that they are committing offences but cannot prevent
themselves from doing so (sometimes described as psychopaths) have not fit
easily within the confines of section 16. Accordingly most of these persons
end up getting convicted. To that extent then, the disposition of the four
criminal charges by way of a guilty plea saems to have been a proper disposition.
The Board is faced with the difficult question of whether or not a
discharge is justified. From the point of view of the Grievor, the position
I can be described as follows. She did steal from her employer but when she
did so it was as a result of a medical condition, one symptom of which is
a compulsion to steal. Accordingly when considered from the point of view
of fault, it would be unfair for her to lose her job for doing something
over which she had little or no control.
From the point of view of the Employer the position is as follows.
Atikokan is a small town. The person who brought the thefts to the attention
of the police was the person with whom the Grievor was working and with whom
the Grievor would work if reinstated. This would not lead to a healthy
employment relationship, which relationship had already broken down by the
{ time of the arrest.
In the eyes of the normal citizens from Atikokan, the
government is a single entity. The series of,events would be seen by the average
citizen as the government discharging a person for theft, which person
admitted the~theftby pleading guilty. If the government were to then rehire
the person the image of the government (as represented by the Liquor Control
Board) would suffer ii-reputable damage.
This Employer is involved and has been involved in a substantial
number of cases of this'sort. indeed, one thinks of Bernardi 102/79,
Penner 307/80, Vioneux 40/81, Durkin 426/81 and others. There are also
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other cases decided by this Board involving theft from employers in other
Ministries. One thinks for example of the case of Andrews 227/79 or
Gutierrez 419/80 or Cook 115/78. In three of the mentioned cases in which
discharge was upheld being Vigneux, Durkin and Bernardi the Grievor protested
his innocence up to the date of the hearing and never admitted wrongdoing.
It was also significant that at in at least one of those cases, i.e., Bernardi
the Grievor R^ad been in a position of responsibility as opposed to a non-
supervisory position. In cases where reinstatement has occurred various
factors have considered to be relevant. In Cook for example a series of
incidents occurred involving false reports as a result of alcoholism
The Grievor was reinstated on conditions. In Gutierrez a shoplifter who
,worked for the Ministry of the Attorney-General was reinstated. This was
done despite a significant argument that the image of the Ministry of the
Attorney-General could not.help but suffer if the reinstatement occurred.
It was also relevant that the thefts were not "job related". In Penner
a person in a position of responsibility who was involved in what the
Chairman considered a "momentary aberration" was reinstated. Although
there was no medical evidence, it was 'of some significance in the matter
that the Grievor "may not have been himself" at the time of the default.
This was because of considerable medication being taken as a result of
an amputation one leg.
The argument of the Employer is that the Grievor was an
Assistant Manager, did in fact commit the four thefts, and that the image
of the Employer would ~suffer if she were to be reinstated. in addition
the argument includes the suggestion that the employment relationship has
broken down at that particular store and that to reinstate her in that
position'it being the only one available, would cause considerable difficulty.
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The argument with respect to the Grievor is that given the factors
set out above, we should exercise our discretion under s.18(3)(2), CECBA to
consider whether the penalty is excessive and to substitute such other penalty
as we considered "just and reasonable in all the circumstances".
This is a very difficult decision to make. On balance, to do
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justice in the particular case this Board feels that the Grievor should be
reinstated. If as the medical evidence shows, the Grievor was stealing
as a result of a symptom of a medical condition, the notion of suspension
without pay would not seem to be fair. To order her to be demoted and to
suffer an effective loss of pay for the time of her suspension would, it
seems to me, to be to ascribe fault to her, something which does not seem to
be open on the basis of the medical evidence. Accordingly it is the order
of this Board that she be reinstated with retroactive pay to the date of
discharge May.27, 1981.
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. It should be noted that the Vice Chairman has a fair amount
of experience in the criminal law area in dealing with psychiatric
evidence. This is not a case of a Board.accepting expert evidence uncritically.
The only expert evidence was offered by the Grievor and the symptoms
described are almost totally consistent wth the evidence as to what
occurred.
DATED AT London, Ontario
this 27th day of May, 1982 v!&
Peter G. Barton
Vice Chairman
"I dissent" (see attached)
H. Laing
Ilember
“I concur" -
E. McIntyre ..I. - ,_
Hill (OLBEU) and Liquor Control Board
DISSENT
It is with regret that I feel obliged to
dissent from my colleagues. My regret is not o,nly with
the result but also with the unfortunate human consequences
of this case.
The majority have reviewed the essential facts
and the evidence inc.luding that of Dr. Kajander and I see
no reason to repeat what has been stated. However, I do
differ with the conclusions that have been reached.
The grievor pleaded guilty to four counts of
theft. Thus the fact that theft oc C’ urred is notin' dispute.
Further, in each case the theft was from the employer: The
grievor in evidence effectively adm i tted the thefts although
she stated she could not recall tak i: ng the money.
The majority /have relied on the evidence of Dr.
Kajander who examined the grievor some two months after her
arrest Dr. IKajander diagnosed her condition and specu-
lated that the thefts might have been caused by psychiatric
compul sions to steal, a condition exhibited by some persons
who have endogenous depression. In the result the majority
have concluded'that the gri'evor lhad no intent to steal and
b:as acting as a result of a symptom of a medical condition.
Thus, t~he majority state it would be unfair to ascribe fault
to /her.
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There are at least three difficulties with
this reasoning. In the first place it is speculative
only. We do not know, and Dr. Kajander cannot assist us,
whether the grievor in fact suffered a compulsion to
steal. It is a possible hypothesis but it is no more
than that. In the second place it is an unlikely hypo-,
thesis on the basis of the very evidence relied on by
the majority. Dr. Kajander told us that only a very few
persons suffer such a symptom. Dr. Kajander stated that
she can attest to having seen only 3 cases, of this kind
of cumpulsion to steal (including the grievor) during
her years of practice, over 1,000 patients. She told us
that memory lapse is a common symptom of endogenous
depression, Therefore, it may well be that the griever
intended to steal at the time and now has no memory of this.
If so the grievor could properly be said to be at fault.
This in turn points up the difficulty of engaging in the
sort of speculative reasoning to reconstruct the state
of m~ind.of the grievor a
of .theft.
t the time she committed the acts
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This brings me to the third reason I disagree with
my colleagues. In my view the employment relationship has
been unrepairably severed VIJlen the convictions for theft
occurred. I do not see how one can face the objective
fact that the grievor is a convicted thief from her
employer and then decide that perhaps the grievor did
not. mean to commit the acts because of a medical condition.
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Even if the majority are correct (a conclusion that can
never be objectively tested) the employment relationship
has been necessarily so severed that neither employee nor
employer can be expected to be able
addition the public perception will
rewarded with reinstatement and ful 1
victed thief. One canonly conside r
to work~together. In
be that our Board has
compensation a con-
with sympathy such a
view when one considers that the employer is a public body
and, in a sense, invoked the public's money. Finally, I
would point out that the evidence is necessarily incon-
clusive as to'whether the grievor is "cured". Even if
the majority's hypothesis is correct, the symptom could
return and manifest itself in further acts of theft.
Final
the majority
lY> I must comment on the manner in which
exercised its discretion to consider whether
the penalty was excessive. In argument counsel for the
grievor suggested that the grievor be reinstated \qith no
compensation and be demoted to a clerk 3 position. In
addition he-suggested that such reinstatement be contingent
on the grievor maintaining contact with Or. Kajander on such
terms as the doctor decides are appropriate. In view of
counsel's request I feel that the majority has erred in
granting reinstatement with full compensation.
As I have tried to m~ake clear, I have sympathy
for the medical difficulties of the grievor. Our task is
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to be fair to the grievor but one must also be fair to
the employer and the public that is served. We must ac
on objective facts and avoid building speculative
theories. In my view, and applying these principles,
the employment relationship has been breached by the
grievor as a result of her acts and she should not be
restored to employment, must less compens.ation. I would
have dismissed the grievance.
HJL/t