Loading...
HomeMy WebLinkAbout1982-0002.Wells.82-03-16Between: .- 3siore: z/22 IN THE MATTER OF AN AREITPATIGN Under TBE CROW?4 ENPLOVEES COLLECTIVE SARGAI?II?lG ACT 3efoze THE GRIE'JANCX S?T"LEMEXT BOARD OLBE‘J (Xenneth.Jaiies Wells) Griever - Acd - The Crown in Right of Mtario (Liquor~Xontrol 30ard of Ontario) 3zployer~ ,, T3.i’~~ Mr. R.L. Verity,Q.C. VICE Chairrtian Prof. P. Craven Xember Mr. 4. G. Stapleton -Xenber ,_, Fcr the Griever: Mr. A~: Milliken Heisey, Cs~;csel Blake, Cassels & Gray&x . For the Enplover: Mr . 3. K. Gray, Comsel Hicks, Norley, HaxlitCn, stebia.YZt 5 stOZ!.i: - 2 - A N A R D. The Grievor, Kenneth !qells, alleges that he XJ'S zr;~‘;stl:: dismissed on November 29th, i981, from his ;csition as Clerk 3 at the Liquor Control Board of Ontario Store +153 in Scarborough. ::?e sole issue in this Grievance is the appropriateness of the penalty impcsed. The Grievor is 29 years of age, and has been in the fji11 , ime employment of the Liquor Control Soard of Ontario since Augzsz Of i979. His first job was as a Clerk at Store #19S, and he uas subsequently transferred at his own request, to Store +163 a??rcxir.ately three months before his dismissal. Inthe classification of.Clerk 3, the .Grievor's r~esponsibilities would essentially be to reglenish -liquor stocks on the shelves,~ assist customers in selection, .and ring in cash sales at the counter. Store 9163 is a self-serve. store where.the Employees work,on either a day shift (9:30 a.m. to 9:30 p.m.) or an evening shift,(3:00 p.m. to 1O:OO p.m.). _;' I On October 28th, 1981, the Grievor worked'the evening shift and at approximately 9:00 2.m. was advised by the Assistant XanaSe:, Gordon aerger, that he was free to leave work. In the norm.al fashion, the Grievor then proceeded to ,the rear of the store to obtain his cctt. Another store Employee,- Randy Smith who was manning the cash cccnter, observed the Grievor take a "mickey" of cherry brandy (value $4.??1! from the liqueur island, and depcsit the bottle in his ri~5.t ,i,=-i ..-..a jacket pocket. ?lr. Smith immediately notified the Assistant ?:ana<er, -3- GordonSerger, by acti*Jating a‘buzzer at the cash counter. :<r . 3erger immediately came to the counter. ,Smith continued his surveillance of the Grievor, and observed the Grievor pick up a- six pack of beer and proceed to the check out counter. Wells thereupon paid $3.60 in cash for the beer. Smith then noticed the "mickey" in the Grievor's hip pocket and as!ted.the Grievor for payment. 'The Grievor feigned surprise at this request, and stated that he had already paid for the "mic:key". Smith reroved the bottle of cherry brandy from the Grievor's hip pocket. The Grievor was then taken to the Hanager's office for a brief meeting with the Assistant Xanager. Wells then left the store and returned within minutes to the~xanager's office. of the .two meetings in the Manager's off Mr. Berger's recollection 'ice'were vague to say the least, but it was established that the Grievor was reprimanded-for ~. his act,ions and was suspended for one day. The Griever's explanaticn -.. was that he was obtaining the bottle of cherry brandy for his wife. On leaving the Manager's office for the second time, the Grievor attempted unsuccessfully to strike Randy Smith with the beer, swore at him, and threatened to "get even". The incident proved somewhat unnerving for Randy Smith, and Smith-subsequently reported the 1. attempted assault to the Police. As mentioned. previously, the Griever's employment was terminated on November 29th, 1981. The Grievor was suhsec-uen<lv charged with theftunder $200.30 under the Criminal Code of Canada, - 4 - and on January 14th, 1982 he pleaded guilty to the charge. ::-.s Prcvincial Court (Criminal Division) suspended sentence a& placed the Grievor on probation for a two year period/on conditicn zhat he maintain his membership in Alcoholics Anonymous. ,. , The day after the incident at the Licuor Store, z.e .- Grievor wrote to Mr. J. E. Jennings, Director of Store Gperaticns ~ of the L.C.B.O., which was the usual procedure, and in so doing attempted to explain the incident (Exhibit 3B). Part,of that ex~planation was as follows.: "For the last five to six months leading up to this, I have been plagued with financial and marital problems. For relief I turned to drinking and taking drugs to over ccme these pressures. One the date in guestion all these. troubles were just too much for my mind to handle. All I could think of was in drowning my troubles. Without even realizing what I was doing I took a bottle through the cash and was caught. I've now been in 'touch with the union and have asked for assistance to get into their re-Hab program." .Shortly a fter the first letter to Yr. Jennings, the Griever wrote a second letter, apo,logizing for his actions and expressing regret over the incident. . . On December 14th, 1981, the Griever again %rc=e '-3 :<r. Jennings (with the assistance of his Counsel) explaining that cn the day in question he was "extremely intoxicated", that he nc~ recogniled that he was an "alcoholic", that he had joined Alcoholics Anonymous, and that he was now aware of the joints Board-Unicn "Smployees' Assistance Program" and would enroll in that program in the event he was rehired. ,. \ The Employer's case was based.on the fact that the crime of attempted theft had been committed, that the Employee knew that his actions were improper and dishonest; and accordingly that the traditional penalty of discharge was the only appropriate penalty. Yi. Gray, on behalf of the Employer, argued that the Grievor's multiplicity of explanations were not credible, and in particular that alcoholism ha,d not been raised as an explanation until the Grievor's~ letter to Mr. Jennings of December 14th; In essence, it was the Employer's position that in this fact situation, alcoholim ( could not be advanced as a reason for the attempted theft, and therefore. alcoholism should not be considered as a 'mitigating factcr. In SUpFOrt of the Employer's contention, Randy Smith and Gordcn Berger testified that the Grievor's general demeanor at work on October 28th appeared no different than on any other occasion. - 6 - ;4?z . Reisey, on behalf of the Grievor, a:q.;ed that the evidence established that the Grievor was an alcoholic. ?u:t?er , it was argued that the Grievor had a satisfactory employment record, with the exception of attendance on duty which was "below average", and that the incident in question, although serious, was. an isolated event. In addition, the Grievor had admitted his wronqdoing the day after the event, and had actively embarked u~cn 2 program of rehabilitation -- all factors which should be considered by the Board in mitigation of the penalty. In assessing the evidence, this Board was impressed with the testimony of Randy Smith. He took the appropriate action on the'day in question in reporting the..activities of the Grievor to Gordon Berger. His initiative in reporting the Grievor's conduct to the Assistant Manager.was commendable, and he demonstrated maturity in maintaining his self-control when fac.ed with,the Grievor's~ insultiag gestures. .Without doubt, Randy Smith is honest and credible ai a witness. We are.of the opinion that the incident.that occurred on October 27th involving the Grievor and Randy Smith concerning a conversation of "overages" in the day's cash was also handled admirab:1; by Randy Smith. In our view, that incident is totally unrelated to the attempted theft incident.of October 26th. We are also of the opinion that Randy Smith's initial assessment cf this.disCaSSiCn "that it was a joke", is an intelligent zssessinent of chat inclZrn=. - 7 - The Grievor testified that he recognlzec for the first tiine that he was alcoholic the day after the incident of Gzc52r 28th. ,Yis evidence was that on the evening of October 27th he had consumed approximately eight beers at his home after finishing xork. He stated that he started drinking the next morning at approximately 9:00 a.m. and consumed seven ounces Of volka in the form of "screwdrivers". Prior to the commencement of his shift on October 28th at 3:00 p.m., he had three to five beers with 1his lunch and several Valium pills. At the.supper break, his evidence was that he consumed more beer (five to six beers). The Grievo- .- stated that this quantity of beer and liquor was his no:mal daily pattern. He also stated that he was on Valium as prescribed by his personal physician (Exhibit.7). The Board accepts the Griever's evidence as to the quantity of liquor and beer consumed on both the evening of October 27th and during the Cay of October 28th. \ ‘Mr. Wells. testified that he had been alcoholic since approximately age 14, and that he was aware that it had caused problems in his family relationship. H'is evidence was that he" recalled with some clarity the events of.October 28th, ‘up to the ..~ time of-his second office interview with Gordon 3erger, and that subsequent events were totally "blacked-out" from his memory. The Griever was candid in'admitting his 2rror and Zoscrikst .., his actions as "totally selfish and unjustifiable". I!2 all2qeZ t?i2= - a - he held no g‘rudqe aqainst either Xessrs. Smith oz Serqer, and that he was appreciative of the fact that the discharge incident had forced him to re-assess and change his lifestyle. The evidence is uncontradicted that Kenneth Wells has joined Alcoholics Anonymous and is attending A.A. meetinqs regularly, approximately four times a week (many times in the company of his wife). The Griever ~candidly admitted that he has s.l&ed twice since joining A-A., but on each occasion rehabilitated himself with the assistance of a fellow L.C.B.O. Employee, ?Ir. Leo :.. .- Kerr. Nr; Kerr testified that he had been an active member of A.A. since 1958, and thathe was an alcoholic who had abstained from the use of liquor since that date, and was successfully en?loyed by the L.C.B.0. for,the.past 15 years inthe same classification of. Clerk 3. He gave evidence that he was the "sponsor" ,of the Grievor in the A.A. organization, and thatthe Grievor did in fact ,attend regularly each week and was active in the organization. :I=. Kerr ..~ stated that. Kenneth Wells "has all the traits of an alcoholic". :-: e also stated frcm his experience that it was not un.usua.1 fcr a man to.~ have "slips" during the first year of rehabil~itation. '~?I?. Kerr vividly described his own lifestyle as an alcoholic yior to rehabilitation, which is characteristic of many alcoholics: '7 wasn't drunk, I wasn't sober - I had a qccd quantity in me each day." and furtSer :?.a: "It would surprise Seople. %ho didn't knew 32 how much I drank each day." - 3 - The Boa~rd was impressed by the maturity a.25 candilr.ess of this witness. .r",r. Kerr'~s tenure of employment with the L.C.B.3. is ‘a tribute to his strength of character. Lorenne~ Well's, the Grievor's wife, testified of her husband's "chronic drinking" that had continued lu.nabated fcr 12 years during their relationship. The Bcard was impressed wit-h this witness' objectivity, a~nd her active encouragem.ent and support of her husband's rehabilitation. She corroborated the drinking patterns and drug usaqes of the Grievor, and,in particular the quantities of beer and liquor consumed the evening of October 27th and the morning of October 28th. Mrs. Wells testified +hat in her opinion, her husband is an alcoholic and that his attendance at A.A. meetings has brought about "amazing" changes in his coizmunica- tion within the marriage and his re-establishment of self ccntrol. In assessing the,evidence, the-Board is aware that the Grievor's offence and subsequent conviction is a serious matter which cannot and should not be condoned. Theft or att2mQte-l theftin any form from an Employer by an Employee, r$qardless of'the value of the stolen goods, does constitute just cause for the impositicn of dis- ciQline by the Employer. Dishor.esty in any form is completely unacceptable to any Employer - 3nQloyee relationship. Theft or attempted theft of the Employer's Qroperty by an EmQioyee is a, fzndaaental breach of the trast relaticrishi? bet.;een '2~' S:l~ysr .nd the Eneloyee. ffie Liquor Control Soard of Cntario h3S the ri;hZ - 10 - to anticipate a hiqh degree of honesty from its Im~;lo;!ees, and a deviation from that standard must be dealt with in :iee?.kq with t:?e gravity of the offence. Having considered the evidence carefully, the 3oard finds fin the circumstances of this case, that the 2erialty of discharge 1s excessive, and accordingly pursuant to Section 19(2) ,of the Cr.own Employees Collective.Bargaining Act a lesser penaity should be imposed upon the Grievor. Clearly, there are compelling mitigating factors in this instance. Dr. Babmann's letter of.November 29th, 1981 (Exhibit 8) stops short of describing the Grievor as an alcoholic. it cZo2.S however, refer to his "craving for alcohol" his "excessive drinking on occasion" and his own admission that he "drinks too much". Dr. Bahmann does state that the Grievor "has an enlarged liver -- this is reversible". The Doctor concludes his report as follows: ~"With encouragement from his wife and his own desire to avoid alcohol, Xr. Wells has a good chance of going straight and he should be given every opportunity to succeed in his endeavours. I think Mr. Wells is basically an honest man and doubtlessly acted while unde~r the influence of alcohol." !i. Whether or not the Grievor is an alcohciic is essenriall~ a medical opinion. The Grievor's evidence is that he has been advised by Dr. Sahmann that he is an alcoholic, and we acce;:t his evidence in this regard. 'There is no doubt in the mind of'either the Grievor or his wife that he is alcoholic. :lr. Kerr testified that the Grievor has all of the traits of an alcoholic. >Je,er+'*=: ccs , w-.---w the evidence is overwhelming that the Grievor has a chronic dri,nking problem which in turn creates tension, frustration and erratic behaviour when he uses alcohol. In the fact situation at hand, there is no doubt that the . incident of October 28th is an isolated incident in his career, characterized inGrievance Settlement Board Awards as a "momentary aberration" in what has otherwise been a satisfactory employment relationship. In our view, the evidence indicates that the Grievor's remorse is sincere, and that he has been actively engaged in A.A. activities since the incident in October in an attempt to change his lifestyle. We are also of the opinion that the Grievor's wife is .sincerely concerned about her husband's rehabilitation, and has been and is precared..to continue to be supportive. This Board considered the following Grievance Settlement Board precedents on the issue of mitigating circsms:ances: 'Cranley and Staunton -- 48/76 & 49;:; (3caty1 Bernardi and the L.C.3..0 -- 102/79 (?ritchard, , Pfef~fer and the L.C.B.O. -- 148/79 (Swintcn) Splonick and the L.C.B.O. -- 31/77 (Beatty) Cook and the Ministry of Labour -- i15/78 (Swinton) Peiner and the L.C.3.0. -- 307/80 (Rarton) MacLean and the L.C.B.O. -- 556/80 (Pritchard) kc?ordingly, it is our ~award that the Grievor~ shall be reinstated to his position as Clerk 3 as of Monday, March 29th, 1982, ;"-3xt to the following conditions: (1) (2) (3) The Grievor shall not receive any compensation or benefits from the date of his dismissal on November 29th, 1981 to and including the date of his reinstatement on March 29th, 1982. The Grievor shall forthwith write a letter of apology to Randy Smith for his unwarranted conduct of assault and threatening Randy Smith on the evening of October 28th, 1981, .and further the Griever shall undertake to co-operate with Randy Smith in any future working relationship. A copy of that correspondence shall be forwarded to Wr. J. E. Jennings, Eirector of Store Operaticcs, -.L.C.S.O.., 55 Lakeshore Boulevard East, Tcronto, Ontario. That copy shall be placed in the Gzievcr's personnel records. The Grievor shall maintain his membership in Alcoholics Anonymous in accordance with the terns of'the Provincial Court (Crkninal Division) Probation Order dated January 135-1, 1982.~ T .,. -: . . - 13 - (4) The Grievor, the Union-and the Sz~lc;:/s: S,*.+ll '. meet forthwith upon the receipt of this Ax+=:! to determine an appropriate treatment course for the Griever's drinking problem consistent with the terms and spirit of the"Employee AssistanaeProgram". In the eventthat the Parties are unable to agree on such a program of treatment within thirty days of the receipt of this Award, this Board shall be reconvened at the request of either of the Parties to determine the issue. '.Z.,> ('5) In the event that the Grievor successfully completes the conditions of this &ard, any reference to the incident of October 23th, 1981 shall be removed from his personnel file two years after the date of this Award. It is recommended that the Grievor's performance be closely supervised by the Employer during his two years while on probation pursuant to the Provincial Court conviction. 12~ I the event that.there is any noticable deterioration in the'Grievor's ."~ performance relating to alcohol abuse during this two yeaz period, then his continued employment should be reviewed. During this ' period, the Grievor will need the encouragement, co-operation and understanding of his fellow Employees. The ultimate resPonsibility of resolving the issue of alcohol abuse rests squarely on the . ..'.I. shoulders of the Grievor. His success or failure at rehabilitation will depend solely upon his courage and strength of conviction. This Poard shall remain seized of the issue in the event of any - 14 - difficulty between the Parties in the interpretatioa, implementation or administration of this Award. DATED at Brantford, Ontario this 16th day of March, 198 2. Vice Chairman Gk@f / Prof. P.. Craven iNember Mr. A. G. Stapleton Member