GSB#0164/01
UNION# OLB512/00
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Boards Employees Union
(Renzone)
Grievor
-and-
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
BEFORE Belinda Kirkwood Vice-Chair
FOR THE UNION Graham Williamson Counsel Koskie Minsky Barristers & Solicitors
FOR THE EMPLOYER Myfanwy Marshall Counsel Liquor Control Board of Ontario
HEARING August 8, 2001, November 1, 2001, January 22, 2002, February 11 and February12, 2002 and April 2, 2002. AWARD
The union claims that the grievor was unjustly discharged.
The parties entered into an agreement of facts which was augmented by testimony. The material facts that are not in issue are summarized as follows:
The grievor was hired by the LCBO as a casual Customer Service Representative in June 1988. Since he began his employment he has worked at Store 20. At the time of his discharge he had the most seniority of the casual employees. He regularly worked at the LCBO, from Monday to Friday, 5:00 p.m. to 9:30 p.m. and Saturdays 8:00 a.m. to 6:00 p.m. Throughout his employment with the LCBO, he has also been employed as a technician with Bell, and continues to hold this position.
Employees of the LCBO can hold accounts with the Members’ Savings Credit Union “the Credit Union”. The Credit Union is a financial services co-operative owned by and operated for employees of the LCBO and AGCO, “the Gaming Commission” and their families. The system allows an employee to cash a cheque at the store, if proper procedures are followed. The employee obtains an authorization number from the Credit Union for the amount to be withdrawn, and the authorization number is placed on the withdrawal envelope. When the cheque is cashed, the cashier writes the employee’s name on the cheque and the amount of the cheque on the deposit envelope. Another employee then checks the deposit envelope. The Quick Draw cheques are processed and sent to the Credit Union for payment. It usually takes several days to follow the full process.
The grievor has a bank account with the Credit Union which had Quick Draw privileges. Prior to November, 2000 he had cashed Quick Draw cheques.
In November 2000, the grievor cashed four separate cheques, $1,000 on November 21, 1000, $3,500 on November 23, 2001, and two cheques on November 24, 2001 for $1,500 and $1,000. In each case the grievor did not obtain an authorization number from the Credit Union, and went to a junior cashier to cash the cheques, and cashed each cheque knowing that he did not have the funds in his bank. The cheques were returned to the Board, for insufficient funds.
On or about November 28, 2001, the grievor was given a NOID, a notice of intended discipline, and was suspended with pay pending investigation. The grievor responded in writing to the NOID on or about December 1, 2000. His letter stated:
This is a letter of sole confession and apology for the stress and dishonesty that I have caused the LCBO namely the manager, Brian Reid. This is very hard for me to admit, but now my life is at a dead end, there is no escaping the damage that I have caused my surroundings and myself. About January of 1999, I found myself lost for thoughts and lost for words. I owed people in big places money, and I had no way of escaping this. I realized then that I had a problem but I was ashamed to ask for help. I prayed for that inch of bad luck to turn into a miracle, but it did not. I then found myself desperate for help both emotionally and financially. This led me to seek counselling and guidance from an outside source. I thought my life was beginning to straighten itself out and my days would not longer be numbered. Until I found myself where I am today. I sincerely hope that no one will ever have to experience the life that I have past [sic] and yet what I am to expect. I realized that Gambling is an addiction, an illness, and it has taken me to bad places in all aspects of my life, and I pursued the necessary help. I freed myself from the urges to gamble, but I still have to clear my name of what is left to owe. I am no longer in the past; I am now suffering the aftermath of a vicious cycle. I am not able to work down the street without turning my head to watch my back. I ask myself over again why my life has continued this way, but I hear no answers.
I depend on my jobs to provide for my family and my life. I am afraid of the past but I am petrified of the future. During the week beginning November 21st, 2000, I was contacted by one of the individuals that I have outstanding dues to. This was where my worst nightmare became reality. No where in my mind would I ever imagine myself in a situation like this, but I am. My life and my family were threatened, and this was not a joke. I found myself in a situation that I could not get myself out of, I needed money and I had to find it fast. My only means of fast cash without incriminating anyone was to write quick draw cheques from the credit union, and this is what I did. I under no circumstances deny my dishonest action, I am speechless as to where I should begin. I know that nobody cares about my outside life, and I don’t want pity but please understand the situation that I was in. I tried to take out loans from banks and also the credit union but I was denied. My actions were uncalled for and I admit this fact but it was a game of Russian Roulette that I was trapped in and the next shot had my name on it.
This letter is a letter of Plea, please see me for who I am, do not judge me by my past. I am acknowledging that I need help and I am willing to take all actions necessary to correct this issue and gains some sense of stability in my life.
Please understand that I depend on my LCBO income to support my wife, 4-year old daughter and newborn.
I am asking you to see me as a whole person, to evaluate me and not to judge me. I am asking not to be slandered or humiliated in my work environment, but I want to be helped. People with alcohol addictions who drink on the job are offered rehabilitation and counselling, why not me?
To close this Plea there is not much more that I can ask, not for forgiveness, but for consoling. I am willing to accept any offer in order to resolve my situation. Please do not punish or blacklist store 20 based on the policies I have broken. My goal is to correct this issue and I need the LCBO to support me through my time of need.
Please find some measures to accept my apologies.
On December 7, 2000, Gus Loukas, the District Manager held a meeting with a representative of Human Resources, the grievor and the Union Representative, Millie Biffa to discuss the matter.
The grievor’s employment was terminated on December 16, 2000 for theft of $7,000. He also returned the money to the LCBO on December 16, 2000.
The Board contacted the police, as was their usual practice for matters of theft. The grievor was charged with four counts of fraud and uttering, but as a result of a plea bargain, he pleaded guilty to two charges of fraud under $5,000 and received a conditional discharge. The conditions were that the grievor was to be on probation for twelve months and the grievor was to attend and actively participate in rehabilitative programs for gambling addiction, and the grievor was to sign a release to allow his probation officer to monitor his progress in the gambling addiction program.
The relevant facts which arose from the evidence given at the hearing which were not contentious were as follow:
As a result of the conditional discharge the grievor went to the William Osler Health Centre and met Ms. Jude Roedding on May 7, 2001 and June 19, 2001. Ms. Roedding testified on the grievor’s behalf. Ms. Roedding was a counsellor with the addiction counselling services at the William Osler Health Centre. She had worked with drug and alcohol addictions, but in the last two years had specialized in problem gambling.
Ms. Roedding explained patients are screened using the South Oaks Gambling Screen (SOGS) which is a proven assessment tool, originating in Alberta, but adopted by the Ministry in Ontario devoted to gambling issues. It is used province wide. On May 7, 2001, the grievor completed several tests, the SOGS, the BASIS-32 (Behaviour and Symptom Identification Scale), the Readiness to Change Questionnaire, and the Rosenberg Self Esteem Scale. After completing the tests, the grievor met with Ms. Roedding for an hour to review the assessment and to create a treatment plan.
In the intake interview, Mr. Renzone said that he had had a gambling problem for about 5 to 6 years, and that he engaged in sports gambling almost daily over the previous twelve months, but he told her that he had not placed bets or gambled other than the odd lottery ticket for the previous five months. He said that he was attending Gamblers Anonymous “GA” meetings once a week for support.
Ms. Roedding stated that the scores on the SOGS test range from 4 or 5 to 20, 20 being the highest. The grievor’s score was 16. The BASIS–32, which measures a client’s degree of difficulty in relating to himself and others did not show any significant difficulties for the grievor. The tests showed that he did not suffer low self-esteem, shame, and embarrassment, the negative consequences, which Ms. Roedding said usually accompany compulsive gambling disorders prior to assessment. His responses to the Readiness to Change questionnaire, which she had developed as a working tool, indicated that he was in the Active stage, wherein he had a sincere commitment to his problem and to his need for change and had already engaged in changes prior to his assessment.
The approach Ms. Roedding suggested was to target sports gambling, and she directed him to continue to go to GA once a week.
When Ms. Roedding met with Mr. Renzone on June 19, 2001, she reported that Mr. Renzone expressed several insights into the self-defeating nature of his sports-betting and said that he was no longer experiencing strong urges to bet. Mr. Renzone did not indicate a need for further support or counselling at the centre.
Ms. Roedding believed that Mr. Renzone had a gambling problem, but after his termination, he had taken care of it before coming to the clinic. She says that a person with a sports addiction, can stop and not have a problem again. She did not think that Mr. Renzone needed to participate in the clinic’s group meetings. Due to his length of time of abstinence, and his insights, in her view, he was beyond the level of the group. She reported that his finances had stabilized. She advised him to continue attending GA and to follow up or be followed up in six months. She saw his prognosis as very high with his attendance at GA. When it was put to her that he had not been attending GA as she had thought, she was of the view that his likelihood or controlling his addiction would be moderate. The grievor never returned to the clinic.
There were many discrepancies in the grievor’s testimony, but to understand the context of the events, I have taken the basic thread of the grievor’s evidence at this juncture, and have left matters of credibility to later in the award.
The grievor attested that he has a gambling problem. He said that in high school had engaged in wagering on statistical betting in cards, but then started sports betting about ten years ago. His gambling increased around 1994 to 1996. At that time his wife became aware of his betting when he had exhausted his credit limit, and had incurred an indebtedness of about $50,000. After making a commitment to his wife to stop gambling, he stopped for a few months, but resumed again.
The grievor said his primary addiction was sports betting and that he would bet whenever there was an event, which could be daily to once or twice a week until he stopped in the year 2000. He would bet from $100 to $2,000 a game. The grievor says that his last sports bet was made in November 2000, and he no longer has the urge to make sports bets. He does however, continue to play cards for small wagers, and buys lottery tickets. He stills sees the friends that he gambled with, once or twice a week, at social clubs and at work and at social events.
The grievor said he used his income, bank accounts, credit cards and bank loans to finance his bets. The grievor said in September 2000, he owed about $150,000. He owed $100,000 to banks, financial institutions and friends. He had borrowed $5,000 from Tony, the loan shark in January 2000 and his indebtedness to the loan shark had grown to $50,000 by September. He had to pay the loan shark $2,500 a week for interest. After he missed two weeks payments, Mr. Renzone said he was told on Monday, November 21, 2000 by the loan shark by telephone and when meeting, that he had to pay $7,500 by Friday, November 25, 2000. The grievor said that he tried to borrow from institutions and friends. As he was unable to, he cashed the four cheques using the Quick Draw system.
After responding to the NOID, the grievor met with representatives of the Board and his union representative, on December 7, 2000. He testified that he told the meeting that he had been gambling, and that he owed a lot of money to certain people, that he and his family had been threatened. However, he had stopped gambling, because he had no means to repay his indebtedness. He said that he had been in therapy two years prior to the incidents and had been in EAP with Bell, but no longer. He had recovered from his gambling problem. The grievor borrowed money from his father and repaid the Board on December 16, 2000. He was terminated the same day.
The grievor said that he has attended GA and saw Ms. Roedding on the two occasions, as she has attested to.
Argument
The Board’s counsel argued that there were two issues: 1) Did the Board have just cause to discharge the grievor for taking the $7,000, which he admitted, and 2) if there was just cause to discharge the grievor, are there any mitigating circumstances that would persuade me to substitute a lesser penalty.
Board’s counsel submitted that the Board had just cause to dismiss the grievor as it had established through the admission of the grievor, that the thefts were committed. While she submitted that discharge is not an automatic response to theft, in light of the seriousness of theft in the retail industry, there is a heavy onus on the union to establish strong mitigating circumstances such that a lesser penalty should be substituted for the discharge.
Counsel for the Board argued that in this case there were no mitigating circumstances. The grievor’s actions showed that the thefts were clearly premeditated. They were four acts over four days, and on the days of the events the grievor waited until the cashiers had accumulated sufficient money to be able to meet his cheque. In each case, the grievor relied on junior employees, in an attempt to conceal his thefts.
Counsel for the Board submitted that there was also no clear evidence that the grievor had a gambling problem. No one testified that the grievor had a gambling problem and his evidence was not consistent. The first time he claims to have a gambling problem is in his response to the NOID. In his response to the NOID, he said that in January 1999, that he realized that he had a gambling problem, sought help and overcame his gambling problem, and was left only with a financial problem. He now claims that he has had a problem for ten years, and that he went to GA once in 1994 at the suggestion of his mother and two friends. Relying on Re Canadian Lukens Ltd. and United Steelworkers of America 1976 CanLII 2159 (ON LA), 12 L.A.C. (2d) 439 (Schiff), counsel for the Board argued that there should be an adverse inference made against the union and the grievor for not calling supporting witnesses.
Alternatively, in the event that the grievor was found to have had a gambling problem there has been no evidence of rehabilitation. He is still gambling with cards for wagers, plays lotteries and has done some sports betting. Where there has been reinstatement, the grievors have gone to great lengths to admit their disability and to seek treatment. This is lacking in this grievor’s case.
Counsel for the Board relied on OLBEU (Hill) and LCBO, GSB #0054/86 (Draper), OLBEU (De Laurentis) and LCBO December 4, 1995 GSB #1016/93; OLBEU#127/93 (Marszewski); OLBEU (Linton) and LCBO GSB#1429/92; OLBEU#115/92 (Gray); OLBEU (Creighton) and LCBO May 7, 1992 GSB #1908/89 (Keller); OLBEU (Reed) and LCBO August 10, 1992 GSB#1165 (Keller); OPSEU(Elliott) and LCBO December 5, 1984 GSB#10/84 (Springate); Re Toronto Harbour Commissioners and Toronto Harbour Commissioners Employees Union, Local 186 29 L.A.C. (4th) (McLaren); Re New Dominion Stores (Division of Great Atlantic & Pacific Co. of. Canada Ltd.) and Retail, Wholesale & Department Store Union Local 414 1992 CanLII 14518 (ON LA), 28, LAC (4th) 53 (Grant).
Counsel for the union argued that the grievor has from the time he responded to the NOID admitted that he wrote the four cheques for which he did not have any money and that he apologized for doing so.
Union counsel submitted that the issue between the parties was whether he had a gambling addiction of disability and what is the effect of his disability on the discipline.
Union counsel submitted that a gambling addiction is a recognized by the DSM-IV as a pathological disorder. The grievor had a gambling addiction which was brought to the attention of the Board when he responded to the NOID. The Board did not canvass the gambling claim and did not refer the grievor to an Employee Assistance Program “EAP” or counselling, which is available to the full-time employees. Union counsel submitted that the Board did not care to help the grievor, it was only seeking restitution of the lost monies and his dismissal. It turned a blind eye to the situation once it learned of the problem. A person with a gambling disability often has to hit rock bottom before being jolted into recovery. There is an obligation to help a person such as the grievor who has a gambling addition. Where an employer has an EAP program, the employee can return as a valuable employee and regain the trust that has been lost. The Board’s failure to deal with the addiction which triggered a duty to accommodate the disability, therefore voids the Board’s claim that it had just cause to discharge the grievor.
Union counsel argued that if the Board was found to have just cause to dismiss the grievor, that this is an appropriate case to mitigate the penalty as empowered by section 7 of Crown Employees’ Collective Bargaining Act and section 48(1) of the Labour Relations Act. When considering the circumstances and facts, including those arising after the dismissal should be considered. The union relies on five mitigating factors: 1) that the thefts related to the grievor’s illness, that of a gambling addiction, 2) that although there were four cheques written, this is part of one continuing act, to pay off a loan shark, 3) full restitution was made prior to termination; 4) the grievor had lengthy service; and 5) the counsellor has indicated that the grievor is unlikely to reoffend.
Union counsel relied upon the cases of the Ministry of Community and Social Services and OPSEU (1992), 1992 CanLII 7458 (ON CA), 11 O.R. (3d) 558 (Ont. C.A.); OLBEU (Creighton) (supra); OLBEU(Reed) (supra); St. Paul’s Hospital and H.E.U. (1995), 1995 CanLII 18354 (BC LA), 47 L.A.C. (4th) 423 (Blumann); Treasury Board (National Defence) and Herritt (1960), 1996 CanLII 20461 (PSSRB), 58 L.A.C. (4th) 297 (P.S.S.R.B.); District Hospital Society and B.C. Nurses’ Union (Castlegar) (1997), 1997 CanLII 25101 (BC LA), 64 L.A.C. (4th) 107 (Larson); C.B.C. and C.U.P.E. (1979), 1979 CanLII 4015 (CA LA), 23 L.A.C. (2d) 227 (Arthurs); City of Moncton v. C.U.P.E. (1990), 1990 CanLII 12725 (NB LA), 10 L.A.C. (4th) 226; and Shell Canada Products v. Energy Workers Union (1986), 1986 CanLII 6709 (ON LA), 26 L.A.C. (3d) 271.
Decision
Before considering whether the Board has just cause to dismiss the grievor, I must first deal with some factual issues arising from the grievor’s testimony, which revolve around the grievor’s credibility and attitude.
The first time there was any indication to the Board that the grievor had a gambling problem was in his answer to the NOID. The grievor provided an ambiguous message to the Board, and then subsequently created the perception at the December 7, 2002 meeting that any addiction he had was under control. Since that meeting, despite the grievor’s inconsistent evidence on the degree of his gambling, he has consistently taken the position that he had a gambling addiction. He told the court in response to his plea that he had a gambling problem, and was ordered to participate in a rehabilitative program. He told Ms. Roedding that he was gambling, and he has told the hearing that he was gambling.
Ms. Roedding did not verify or make any independent investigation into Mr. Renzone’s claims but relied only on Mr. Renzone’s statements and responses to the tests. She supported his position, and found in her assessment that he had a gambling addiction. On the SOGS test, he said that he was gambling about one to two times a week on sports betting, three to six times a week on cards and bought lottery cards one to two times a week. His answers in his direct examination and in his cross-examination indicated a greater frequency than he had advised the counsellor through the SOGS assessment.
Other than responding to questions on his gambling habits, whenever the grievor was pressed for clarification or an explanation, he would try to avoid answering directly and would give inconsistent answers, whether it related to his financial situation or to his attendance at therapy or GA.
The grievor’s evidence on his financial situation was inconsistent. The grievor testified that in November 2000 he had a bank account with the Laurentian Bank and two accounts with the credit union. He said he borrowed from Banks and institutions to obtain monies for betting. When cross-examined, he said that he did not apply to the Laurentian Bank for a loan. He said he applied to the Bell Credit Union and to the LCBO Credit Union for a loan in early November 2000. Then when pressed he said that it might have been earlier, and agreed that it might have been in September 2000 when he was denied a loan. He said he repaid the LCBO at the end of November, but he had no copies of any loan applications. He said he owed mortgages and then in cross-examination he said that his wife pays the mortgage and he cannot borrow against the house.
The grievor said that he had asked a number of employees for a loan of monies up to $5,000 at the beginning of November and as a regular practice. He was not able to borrow further money from them, as he was already indebted to them.
The grievor also testified that he used his credit cards to obtain funds for gambling. When it was pointed out to him that in his response to the SOGS, he said he did not use credit cards to obtain money, he then said he did not know why he answered that, as he had been taking money off his credit cards for gambling. He said his Mastercard had reached its limit in November 2000.
The grievor could have clarified his financial position had he complied with the Order made on November 1, 2001 on a motion brought by the Board on November 1, 2001 for full particulars for the grievor’s financial situation and for evidence relating to his father’s assistance. The grievor ignored the Order and provided minimal and irrelevant information. He provided his father’s mortgage statement, as of approximately six months after the event at the LCBO, and only a two page bank statement which did not indicate that the account number nor the bank or that it was the grievor’s bank account. Although the grievor claimed to have banked with several institutions and use his credit cards, he failed to produce any other records. He did not bring any other witnesses to support his evidence.
The grievor’s evidence was unreliable on other matters which should not have been contentious, such as whether he went to therapy or not, and if so what was its purpose. Mr. Loukas, who gave his evidence in a forthright manner, and had no ulterior motive, was a credible witness, and testified that in the meeting of December 7, 2000, after the grievor was nudged by his union representative, the grievor said he had been in “therapy” with Bell for two years prior to the incident, and had stopped going to therapy prior to the incident. Early in his cross-examination he denied saying he was in therapy for two years, but finally at the end of his cross-examination, admits that he said he had been in therapy for two years. He also said in his cross-examination that he only went to EAP at Bell two or three times, those times when he needed help.
The grievor attempted to mislead the Board and the hearing on the nature of the therapy. In the context of the response to the NOID and the discussion on his earlier gambling problem, it was reasonable to conclude that the grievor was referring to therapy for his gambling problems. However, when questioned further, he said that he sought professional help, not for gambling, but for other personal problems. He only saw gambling as a minor matter.
The grievor was very evasive as to what “therapy” was. In his cross-examination, he reduced “therapy”, to talking to friends and suggested that counsellors consider self-reflection as therapy. Then when asked if he was saying that therapy was not just speaking to a counsellor, but speaking to friends, he does not answer that question directly but says “it could be”. He also saw his priest once or twice.
There was a wide variety of different evidence from him on his attendance at GA. The grievor made no mention of ever having attended a meeting of GA at the December 7, 2000 meeting. Yet, in his direct examination he first says that he went at the end of November 2000, then in cross-examination, he adjusts the time frame to the beginning of December, 2000, after the NOID but before the meeting of December 7, 2000. He testified that he went to GA until his conviction. He gave a different story to Ms. Roedding. He told her that he went to GA once a week. When the grievor’s attendance at the GA meetings was probed at the hearing, it appeared from his cross-examination that he did not have much regard for the GA meetings, and would only go anywhere from five minutes to a half hour, when he went. He was unable to say with any clarity when he went, other than on Mondays but he would not go if he worked on Monday nights. From the evidence that he gave, to the extent that he did go to GA meetings, he did not attend regularly, but spasmodically.
The grievor’s evidence shows that he has a significant problem in being honest and truthful. What was the consistent thread throughout his evidence is that he responds to pressure, and only to the extent that he believes is necessary to offset that pressure, but is not prepared to make any true commitment. On his best evidence he attended therapy a couple for times, when pressured by his wife in 1995/6 when she learned of his gambling problem. He is pressured by the loan shark for money, and he reduces that pressure by stealing. He sees his job is at risk and he pleads for the job, and claims to have had a gambling addiction problem and needs help. He is faced with a criminal conviction and he commits to participating in a rehabilitative program, but only makes token appearances, at best. He tells the counsellor that he is going to GA weekly, and as a result the counsellor is content with that support and does not recommend further help. He expresses personal insights, and leads her to believe that he is continuing with GA and therefore Ms. Roedding only suggests continuing with GA. He has never fulfilled that commitment.
Notwithstanding the grievor’s inconsistent and frequently unreliable evidence, I find that he had a gambling problem, the degree of which is unclear. Despite the inconsistencies in the grievor’s evidence, the gambling theme was recurrent, and there was no other explanation for his indebtedness, which would lead him to his relationship with the loan shark. I also find that although there was no corroborative evidence of the extent of the grievor’s indebtedness, and the grievor’s evidence was unreliable, on the basis of his actions. he was under heavy pressure to pay $7,500 by Friday, November 25, 2000. Although I would not expect Tony the loan shark to appear, it does explain why the grievor went to such lengths to obtain the money that week.
While I am prepared that due to the extreme reaction he had to his financial pressures that he owed a loan shark and that he obtained these pressures through gambling debts, I do not find that he recognized that he had a gambling addiction problem, and made the Board aware that his gambling addiction was not under control. At best, on the evidence, the grievor told the Board that he had had a gambling problem and needed help, in his response to the NOID; however, also according to the letter, he no longer had the problem, it was under control. “He had freed himself of the urges to gamble”, he was only left with the financial problems. At December 7, 2000 meeting the impression that the grievor left was that he was not pursuing help, he did not need it, but rather he had acted in order to remove the threats made against his family and himself, by the loan shark.
The grievor was represented at the December 7, 2002 meeting, and his union representative encouraged him to come to be open when “nudging him”. The grievor left the impression that he had completed his therapy. Furthermore, as the grievor knew that his job was in jeopardy, I do not believe that he had gone to any GA meetings prior to this meeting, as it would have been in his self interest to mention it at the meeting, and he did not do so. Even though the Board did not probe into his gambling addiction, the grievor left the Board with the view that he no longer had the problem. The grievor corroborated this impression in his testimony.
Did the Employer have Just Cause to Discharge the Grievor
As in the case of Ministry of Community and Social Services and OPSEU (supra) there must be a two-pronged approach when considering any alleged misconduct, 1) is there just cause to discharge the grievor, and 2) are there any mitigating circumstances which would warrant a reduction in the penalty.
Whether there is just cause requires considering the conduct and placing it in the context of the operation.
The grievor admitted that he cashed cheques using the Quick Draw system without having the money to meet his obligations and that he did so without obtaining the required authorization. He knew that he could not withdraw $7,000, the amount that he needed at one time and so he waited and watched on each of the four days until there was sufficient money in the till to be able to meet the cheque he was presenting. He then used junior employees to cash the cheque and relied on them not questioning his actions as he was a senior part time employee. As the senior part time Customer Service Representative, it was his responsibility for ensuring that the proper procedures were followed. None of the junior employees did question him and he was able to cash the four cheques. Although he had no management position over the junior employees, he took advantage of their lack of experience for his own gains.
By his actions, the grievor broke the trust that is fundamental to the employment relationship in a retail operation, in knowingly taking the money without any authorization, and in using a junior employee to ensure that he would be able to do so. On this basis alone, the Board had just cause to discipline the grievor, and the only issue is whether the discharge was extreme in the circumstances.
Discharge is not an automatic penalty for theft. The offence must be placed in the context of the operation and in the context of any mitigating factors. In this case the nature of the operation is that of a retail outlet and the Board has to be vigilant to limit any theft. As in Re New Dominion Stores (supra) where the grievor was left accountable for the shortfall of $10.00 on water jug returns, that arbitration board pointed to the standards and to the difficulties the retail industry finds itself in, at page 64, when it referred to Re Miracle Food Mart of Canada and Commercial Workers International Union, Locals 174 & 633 24 C.L.A.S.187 (Foisy):
In this case, we are dealing with the retail industry which is plagued with important losses attributed to shop-lifting. In that context, theft by employees is more difficult to tolerate than perhaps in other industries. It is important that employees working in that industry be sent a strong message as a deterrent. The company’s policy in this regard is that employees that are caught stealing merchandise or money as cashiers are terminated.
The Board continued on page 64 and referred to Re Canada Safeway Ltd. and UFCW, Local 2000 (1987), 1987 CanLII 8731 (BC LA), 29 LAC (3d) 176 (Hope), where arbitrator Hope acknowledges the strain that theft places on the retail industry and states that:
where an employee who admits dishonesty or is found to have acted dishonestly in that environment must, as stated, establish mitigating facts consistent with a maintenance or restoration of the essential element of trust.
The importance of honesty in employees handling cash is emphasized in Re Toronto Harbour Commissioners (supra). The arbitrator finds that employees handling cash must be honest, and mitigation should only occur where there are significant reasons to do so. Referring to page 6 of Arbitrator Ponak’s decision in Carling O’Keefe Breweries of Canada Ltd. and Western Union Bakery, Beverage, Winery & Distillery Workers, Local 287 (1988), 1988 CanLII 9323 (AB GAA), 3 LAC (4th) 222 (Ponak), the arbitrator states:
…theft is such a serious transgression that the grievor bears heavy onus to demonstrate that mitigation is warranted. In particular, arbitrators have declined to relieve against termination for theft where one or more of the following factors is present: (1) the grievor lacks credibility, in particular by refusing to admit wrongdoing either at all or until the hearing: (2) theft was premeditated, and (3) strong evidence of widely publicized and unequivocal consequences for theft is provided by the employer.
The union urged me to first find that the grievor’s addiction to gambling not a mitigating factor, but was a disability or illness, which the Board was obliged to accommodate, and its failure to do so, vitiated the penalty.
The DSM-IV filed showed that the urge to gamble varies and falls into categories from pathological gambling to social gambling. Without making any distinction on the level of the gambling addiction and accepting that it is a disability, nevertheless, there is a difference between the right of an employee to have his disability accommodated in order that he can continue to work and the right of the employee to use a disability to justify a wrong. Very simplistically, a disability or illness, such as an addiction, whether it be substance abuse or a gambling addiction, which I take for the purposes of this arbitration to be a disability, gives rise to the employers’ duty to accommodate that person in a workplace to allow that person to continue to work in a fruitful manner, notwithstanding the disability. The accommodation creates obligations on all parties, or participants, the employer, the union and the employee to work together to accommodate the person’s disability to allow that person to continue working with full respect and dignity. It focuses upon each party providing the necessary tools to allow the employment relationship to continue, the foundation of which is a restored element of trust.
For accommodation to exist there must be a recognition by the employee that there is a disability for which accommodation is required, and the employer must know or be in a position that it is likely that they would know that the disability exists, for accommodation to occur, and there must be an ability to maintain the basis for an employment relationship. An example is seen in the case of St. Paul’s (supra) which revolves around a non-culpable discharge for innocent absenteeism that was due in part to an alcohol and drug addiction problem. Although the grievor had not recognized her problem at discharge, she subsequently sought and maintained treatment, to the degree that her attendance would not likely to be poor in the future and the reciprocal obligations in an employment relationship of providing work for income could be met.
At no time prior to the grievor’s suspension, did he communicate to the Board that he had a disability, a gambling addiction, that was affecting him, and for which he had to be accommodated in the workplace to continue to work. When he responded to the NOID, it was clear that he was pleading for his job, but as it related to a gambling addiction, he gave a mixed message, on the one hand saying that he had had a gambling problem, but it was under control and on the other hand that he needed help. At the meeting of December 7, 2000 he held the view that he had had therapy and he no longer had a gambling problem. He was not seeking accommodation. He was only looking to maintain his job. His actions subsequent to the incidents of November 2002, were also consistent with doing a little, but not a true indication that he recognized that he had a problem which he wished to control and ensure that it not happen again.
The concept of accommodating a disability is different from an attempt to use a disability to justify a wrong. The disability may give an explanation for a chain of events, but in the context of a dishonest act, it does not nullify the dishonest act nor void the discipline on the sole basis that there is a disability or one which the employer failed to canvas. If it is established that the employer had just cause to discipline or discharge the grievor, the disability and the actions that emanated from the disability, or the actions of the employer with respect to the disability, are factors which are to be considered as any other when weighing the interests of the employer and the countervailing mitigating factors of the employee whether a lesser penalty should be substituted for discharge, (OLBEU (Creighton) and LCBO (Keller) (supra).
There have been cases in which a grievor’s dishonest act has been linked to a disability, such as in Linton, (supra) where the grievor alleged that his thefts were due to his cocaine habit. As suggested by Vice-Chair Gray, when considering a disability in that context, when determining if the discharge was excessive in the circumstances, it was, as in any other discharge for misconduct, a matter of balancing the grievor’s interest in retaining his job and continuing livelihood, with the employer’s interest in maintaining confidence of the public, and the integrity of its operations. Factors which include a consideration of whether the action was planned or spontaneous, was it one incident or part of a series, whether there was an admission of wrongdoing and when, and whether or not there was remorse, relates to an assessment as to whether the dishonest conduct was out of character for the grievor and is of assistance in determining his prognosis for the future and the viability of a continuing employment relationship.
In Castlegar (supra), where the culpable action of stealing was linked to an addiction, the misconduct and the culpable action was found to be an involuntary action arising from the addiction. In this case, Mr. Renzone’s actions were not involuntary. No doubt, Mr. Renzone’s gambling problem or his gambling addiction created great financial stress, which was exacerbated by the demands of the loan shark. However, when it was put to Ms. Roedding as to whether a gambling addict could tell right from wrong, she responded “of course, he can tell right from wrong, he is not insane”. While the gambling may have created the financial predicament that the grievor found himself in, it was his own sense of morality and judgment, in a situation where he found himself under pressure, which led him to steal. The gambling addiction did not “cause” him to steal, although his perception that he was being threatened by the loan shark, did. He ultimately made the choice to look to others to obtain the funds he needed to make restitution, but in the week of November 21, 2000, he chose to steal from the Board on four occasions during the week.
I cannot find, as the Union urged upon me, that these acts were part of one continuous act. The grievor may have had a fixed amount to pay by November 25, 2000, but he had five days to consider how he was going to get the money. He acted deliberately on each occasion, assessing the amount that he needed and the amount that he could obtain without raising suspicion. He watched the till, had the cashiers count the money, hand it to him and he prepared the deposit envelopes. His actions constituted theft. The thefts were not only an abuse of trust, but they were premeditated, and were not a result of a momentary aberration.
Employer’s counsel was also able to show, that notwithstanding the agreed statement of facts in which the parties agreed that the thefts occurred, the grievor did not admit to the thefts and would not admit to stealing the money, although the grievor admitted cashing the cheques without authorization. He first called taking the money as cashing a cheque. He was then asked “you do not consider it stealing?” to which he answered” No, I do not. I call it a desperate measure.” Despite further questions in cross-examination he would not consider it stealing.
The grievor’s attitude raises the question, that if he does not consider it stealing, and sees it as only a desperate act, what is the likelihood that he would not do it again, if he was unable to see his way to pay his debts. If he were to be believed he said that he owed $50,000 to the loan shark in September of 2000, and that he was paying $2,500 a week in interest. At the hearing he said he no longer owed any money to the loan shark. That fact raises more questions. If $2,500 was interest, when was the capital paid down? Where did he raise the money to pay the loan shark? Did he create further indebtedness, and to whom? He said he also had $100,000 in other indebtedness in September of 2000, and he still had this indebtedness when he saw Ms. Roedding. He told Ms. Roedding that he had no repayment plan, so there is no assuredness that he will not fall under financial pressure to repay these debts. I do not see any support for Ms. Roedding’s conclusion that the grievor’s financial situation had stabilized.
With respect to his future prospects of gambling, the grievor testified that he made his last sports bet in November 2000, but continues to buy lottery tickets and make wagers on cards for small items, such as a lunch. Although Ms. Roedding had thought his prognosis was high, she understood that he was continuing to go to GA meetings after he last met with her. Although Ms. Roedding then felt that the grievor’s prognosis was moderate, if he had not been going to GA meetings, as she had believed, she did not have the benefit of hearing his evidence prior to coming to her conclusion. His actions after the incidents did not show that the grievor has actually faced his gambling addiction to the extent that he is obtaining support from rehabilitative agencies to ensure that he will abstain from gambling and will not move further into debt.
The people who know him best are his family. Although they did not attend the hearing, the grievor’s perception was that his family, when seeing watch sports events, questioned whether he could remain true to his commitment not to gamble on sports. He made a commitment in 1995/96 to his wife not to gamble, but he only remained true to that commitment for a few months. If his family cannot rely on the grievor’s commitment to them not to gamble, how can the Board have a sense of security that the grievor will not fall into another pattern of gambling and increased indebtedness. A sense of security is not a guarantee, but an employer must have, if the employment relationship is to be reinstated, a reasonable expectation that trust can be re-established with that employee.
In this case the grievor continues to socialize with those he gambled with, continues to go to the same social clubs and venues where he has gambled, and he has not gone to GA in any meaningful manner or length of time and has not heeded the advice of his counsellor to continue to go to GA. Notwithstanding any self-reflection, he has not taken any steps to ensure that the same thing will not occur again, as was found in OLBEU (Reed) (supra). In OLBEU(Reed), the arbitration board accepted that the grievor’s evidence that he had had an existing drug and alcohol problem that spiralled out of control and affected his employment. He admitted his wrong-doing of stealing on at least two occasions, from the first, entered a guilty plea and his post discharge evidence was consistent with rehabilitation. However, he did all he could to ensure that his alcohol and drug addictions would remain under control. When help was not available in Ontario, he pursued help in the States, and went to both NA and Alcohol Anonymous (“AA”). He avoided his former friends and haunts.
Mr. Renzone’s case is very different from other cases between these parties where the grievor has been reinstated after the grievor was terminated by the Board for dishonest acts that arose from a gambling addiction. In each case, by the time of the hearing, the grievor understood his transgression, and his addiction, and had gone to great lengths to ensure that it would not happen again. In so doing, the efforts which the grievors made established a basis for the restoration of trust upon which the employment relationship was built.
In OLBEU (Creighton) (supra), the grievor had misappropriated funds and had issued NSF cheques to support his gambling habit. He had not confronted his gambling addiction at discharge, but did so after the discharge and prior to hearing. He then became involved in both AA and GA. In that case the grievor was reinstated on very specific conditions, after the arbitration board balanced the interests of the employer with its concern over the serious breach in trust, and the dangers of placing the grievor in a position where he was accessible to cash against the interests of the grievor where he was able to establish that he had had a good employment relationship, his thefts were out of character, he was extremely remorseful after his discharge, he had overcome an alcohol addiction at an earlier time, and had cured the deficiencies that had caused the theft, his gambling problem.
In the Treasury Board (supra) case, where the Board returned the grievor to work under conditions after he had been terminated for theft of supplies. As in the case before me, the theft of the goods was relevant to the nature and integrity of the operation. As the grievor worked in the Ration and Supply department, which was under scrutiny for downsizing, the impact the theft had on other employees and the department was significant. Prior to the theft incident the grievor had been in denial and had been out of control, lying and stealing to finance his addictions. With the theft it triggered a resolution to improve his life and set out on a course of action, which lead to him maintaining his recovery through a year in which he was also undergoing severe stress from his personal life. The arbitrator in the Treasury Board case found that the grievor was credible, remorseful, honestly facing the act of theft and had undergone a “transformation” in his life since the incident, following rehabilitation programs, working on his problems and keeping clean, notwithstanding personal stresses in his life
Although each case flows from its facts, this case is much more similar to OLBEU (De Laurentis) (supra) which involved a sixty year old employee with nine years service is helpful, as it is somewhat parallel to the situation before this board. Although Mr. De Laurentis pleaded guilty to theft in the courts, he admitted the theft only so far as it was caught on video. He followed a drug and alcohol awareness program, attended AA and remained sober to the point of hearing. As in this case the expert was able to testify to the grievor’s addiction which in this case was to alcohol, but was not able to comment on the grievor’s honesty. He also relied on the information given to him by the grievor. The board found that although he had come to terms with alcoholism he had not acknowledged his theft problem, was not directly apologetic, and made no attempts to seek help or counselling for his repeated acts of theft. He was not prepared to acknowledge his thefts openly at the hearing. He had an unwillingness to confront his thefts and to admit to them and was not remorseful or apologetic for them and was unable to use his best efforts not to steal again. The Board found that the grievor’s evidence was not credible and could not accept the grievor’s attempt to transfer his responsibility for the thefts to his alcohol dependency. He knew of the policy and he knew what he was doing, that he was knowingly and deliberately stealing from the employer and therefore the employer had just cause to discharge him. Balancing the interests of the parties, the employer’s need for general deterrence, the Board found that as he, the Board found they did not outweigh his age and skill level and upheld the dismissal.
In the retail industry, especially where the employee is handling cash, the employer has to have trust in its employee. In this case the grievor broke that trust both in taking the money without any authorization and in using a junior employee to ensure that he would be able to do so. On this basis alone, the Board had just cause to discipline the grievor, and the only issue is whether discharge was extreme in the circumstances.
The onus is on the union to show that the mitigating circumstances warrant a reduction in the penalty. Although the grievor had lengthy service, without any similar prior disciplinary incident and had made restitution, which as in the CBC (supra) case, are not to be taken lightly, the crucial underlying factor, the basis for the restoration of trust, has not been established. In the CBC case, credibility of the grievor was not in issue. On the contrary, his lengthy service, and his actions to preserve the CBC from any loss, although he abused their trust in misusing the system to obtain funds for himself, gave the arbitrator hope in his rehabilitation.
In the case before me, the grievor was not credible and by his actions, was using the system for his own purposes. The grievor would not admit that taking the money as he did was theft. Notwithstanding his response to the NOID, he did not show any sense of remorse or contriteness. He was only concerned that he had lost his job. He has misled his counsellor and if he misleads his counsellor, who was there to help him, he cannot be trusted not to mislead his employer. Although he said he had a gambling addiction, if he truly acknowledged any gambling addiction, he took no serious course of action to attend GA or to participate in any rehabilitative programs. Although the grievor said that he made his last sports bet in mid November 2000, and he does not have the urge to do sports betting and it is under control, he does not have the support of any rehabilitative agency to ensure that he will do no more than make insignificant wagers on cards or buy lottery tickets as he contends. In this context the grievor has not put in place the basis for the employer to restore the trust in him that is required in a retail operation.
Therefore I do not find that the mitigating factors of the grievor’s admission that he cashed the four cheques without authorization, his lengthy service without a disciplinary record, and restitution of the funds, when balanced against the nature of the Board’s operations, as a retail operation, that must ensure that theft is minimized and must trust those responsible for cash mitigates the penalty of discharge in these circumstances. Therefore this grievance is dismissed.
Dated at Toronto, this 22nd day of May, 2002.