GSB# 2003-0710

UNION#OLB214/03

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Liquor Control Boards Employees’ Union (Huvos)

Grievor

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Larry Steinberg Koskie Minsky Barristers and Solicitors

FOR THE EMPLOYER

Alison Renton Counsel Liquor Control Board of Ontario

HEARING

September 30, 2003.

AWARD

In this case, there is no dispute that the grievor, Boyd Huvos, was discharged for just cause. The only issue is whether a penalty other than discharge is just and reasonable under all of the circumstances, as set out in Section 48(17) of the Labour Relations Act. For quite a number of reasons which are set forth below, that determination is a very difficult one to make.

Facts:

Counsel for the parties presented the Board with an Agreed Statement of Facts. Those facts are as follows:

1. The Grievor commenced employment as a casual retail employee effective May 6, 1998 in Mississauga and had a seniority date of May 6, 1998.

2. As a casual employee, he performed a number of functions including stock, customer service and cash. At all relevant times he reported to the store manager.

3. The Grievor was a successful candidate in a job competition held in 2002 in Central Region. As a result, he was promoted to a full time customer service representative (“CSR”) effective October 21, 2002 as per a letter of appointment dated October 8, 2002. Pursuant to article 4.1 of the collective agreement, he was required to serve a six (6) month probationary period.

4. A copy of the collective agreement is attached hereto as Appendix “B”.

5. The Grievor was assigned to store 458, which is an “A” store, and reported to the store manager, Enzo Boreanez. The store is located at 25 Hillcrest Avenue, Mississauga, Ontario.

6. As a full time CSR, the Grievor was scheduled to work 40 regular hours per week, from Monday to and including Saturday. As a full time CSR, he was required to perform cash and perform stock duties. He ran shifts, which required him to be the person in control of the store, and which required him to hold keys to the store, keys to the cash register, balance deposits and place deposits into the safe, and assigning work to and supervising other employees during that shift.

7. On February 11, 2003, a covert CCTV camera system was placed above cash register #5, the cash to which the Grievor was assigned. This was installed by members of the Employer’s Resource Protection department, Dave Hadlow, manager, and Ihor Salij, Investigator, with the cooperation of Mr. Boreanez. The camera system records, onto videotape, the actions of the Grievor while working on cash on February 14 and 15, 2003.

8. The videotapes of the Grievor's actions were reviewed by Mr. Hadlow and Mr. Salij on or about February 18, 2003. The videotapes revealed a number of incidents on February 14 and 15, 2003 as set out below and as demonstrated in the documentation attached hereto as Appendix “C” and “D”.

9. On February 14, at approximately 2:20 p.m., the Grievor rang through and bagged 2 bottles of brandy, each valued at $20.25 for total transaction of $40.50. He accepted 2 bills and some coin from the customer. No change or receipt was given to the customer. After the customer left, the Grievor pressed the “void” key and voided out one of the bottles thus reducing the total transaction to $20.25. The amount of loss to the LCBO was $20.25.

10. On February 14, at approximately 2:50 p.m., the Grievor rang through and bagged 3 bottles of Emu 999 Red Port, at $8.15 per bottle for at total of $24.45. The customer provided an Air Miles card and a Visa credit card for the purchase. The Grievor processed both cards and the transaction was approved. After the customer signed the Visa slip, the Grievor inserted a key into his cash register and voided the transaction. The customer left with the bag of product. The Grievor assembled paperwork for the void and indicated that the reason for the void was because the customer bought the wrong bottles. Attached hereto as Appendix “E” is a copy of the void explanation slip and transaction records. The amount of loss to the LCBO was $24.45.

11. On February 15, at approximately 2:00 p.m., the Grievor scanned and bagged 4 bottles. The total transaction was $61.20. The customer placed some bills on the counter for payment and the Grievor picked up the bills. The Grievor then hit the void key and voided out 3 of the 4 bottles. The total for the transaction was reduced to $15.30. The Grievor placed some bills on the cash tray and placed one bill on the counter. The customer placed some coins on the counter, which the Grievor picked up and placed into the cash tray. The customer left with the product and no receipt is given to the customer. The amount of the loss to the LCBO was $45.90.

12. On February 15 at approximately 6:00 p.m., the Grievor scanned 2 bottles of Smirnoff Vodka for a total of $60.80. The customer placed an Air Miles card, 2 bills and some coin on the counter. The Grievor bagged both bottles, swiped the Air Miles card (which does not later appear in the register), picked up the bills and then hit the void key and voided out one bottle reducing the transaction to $30.40. The Grievor handed the customer some change and placed the bills into the cash tray. The customer then left with the products. No receipt is given to the customer. The amount of the loss to the LCBO was $30.40.

13. On February 15 at approximately 6:50 p.m., the Grievor inserted a form into his cash register and processed a return to stock (“RTS”) form. No customer is seen and no product is seen. The Grievor processed a RTS for two 750m. bottles of Moet Chandon champagne. He opened the cash drawer, closed it and attached a receipt to the RTS form. An RTS form has 2 parts to it, one for the store and one for the customer. The Grievor removed the customer’s part, crumpled it and threw it into the waste basket. The RTS form, which is filled out by the Grievor, indicates that the product was returned by a Stu Planter, at 444 Leaside Drive, Etobicoke (416) 774-1204. There is no Stu Planter at that address or telephone number, and in fact, that address does not exist. The amount of loss to the LCBO is $103.70. Attached hereto as Appendix “F” is a copy of the RTS form and transaction tapes.

14. On February 15 at approximately 7:00 p.m., a customer placed on open case of beer on the counter. The Grievor removed one bottle from the case, scanned it, rang in 16 units and totaled the transaction to be $33.60. The Grievor than picked upon another bottle, scanned it, rang in 4 units and totaled the entire transaction to be $42.00. The customer handed the Grievor some bills. Then the Grievor took another bottle, scanned it, then hit the void key and voided out 19 bottles worth $39.90 thus reducing the transaction to $2.10. The customer placed a coin on the counter and the Grievor placed the coin and bills in the cash tray. The customer left with all the product without being handed a receipt. The Grievor took the receipt, ripped it up and threw it into the waste basket. The amount of loss to the LCBO is $39.90.

15. On February 15, at approximately 8:30 p.m. the Grievor completed a transaction of 4 bottles for a total of $111.80. The Grievor did not provide the customer with a receipt. The Grievor completed 2 more transactions which are transactions #4601 and #4602 on the cash register tapes. After transaction #4602 is completed, the Grievor looked around, inserted a key into his register and began to process a void. No customer is present and no product is seen. The Grievor voided the transaction of 4 bottles (transaction #4600 worth $111.80.) He removed the receipt and the void slip from the terminal, took the key, left the cash area. He filled out a void explanation slip and stated that the reason for the void is “insufficient cash (actually no cash)” despite the fact that on the videotape the customer clearly hands the Grievor cash for the transaction. Attached hereto as Appendix “G” is a copy of the void slip and tape transactions. The amount of loss to the LCBO is $111.80.

16. The results of the videotape were reviewed by Mr. Hadlow, Mr. Salij and the information is shared with Mr. Boreanez and the District Manger, Jeff Misener and the Peel police.

17. On February 21, 2003, the Grievor was charged with 2 counts of theft under $5,000 and 2 counts of fraud under $5,000 by the Peel Police.

18. The Grievor was issued a NOID dated February 24, 2003, attached hereto as Appendix “H”.

19. The Grievor responded to the NOID by correspondence dated February 26, 2003, attached hereto as Appendix “I”. The letter states, in pertinent part: “Please be advised that I have contacted a lawyer who has instructed me not to make any comments until criminal charges have been disposed of. …”

20. The Grievor was terminated by correspondence dated March 3, 2003, attached hereto as Appendix “J”.

21. The total amount of the monies and/or product involved was $376.40.

22. The Grievor filed a grievance, at Stage 3, dated May 7, 2003, attached hereto as Appendix “K”.

23. On May 26, 2003, the Grievor pleaded guilty to 2 counts of fraud under $5,000. He was sentenced to 6 months probation, ordered to pay fines totaling $1,500.00 to be paid within 6 months, and ordered to pay restitution in the amount of $516.00, to be paid within 6 months as per the probation order, attached hereto as Appendix “L”. To date, the restitution has been paid.

24. Section 48.1(1) attached as Appendix “M” of the Crown Employees Collective Bargaining Act states:

“If a Crown employee is convicted or discharged of an offence under the Criminal Code (Canada) in respect of an act or omission that results in discipline or dismissal and the discipline or dismissal becomes the subject matter of a grievance before the Grievance Settlement Board, proof of the employee’s conviction or discharge shall, after the time for an appeal has expired or, if an appeal was taken, it was dismissed and no further appeal is available, be taken by the Grievance Settlement Board as conclusive evidence that the employee committed the act or omission.”

25. On or about November 6, 2002, the Grievor started to see a psychiatrist, Dr. M. Hoffer. Attached as Appendix “N” is a copy of the medical report prepared by Dr. Hoffer for these proceedings at the request of the Union. The Parties agree that this report is properly admitted into evidence pursuant to the provisions of the Evidence Act and that the Employer reserves its right to argue as to the weight that ought to be given to this report by the Board.

26. The Employer was provided with Dr. Hoffer’s report on September 19, 2003.

27. The Grievor, who at the time of the events giving rise to this proceeding was 25 years old, is currently 25 years of age and single.

Dr. Hoffer is a psychiatrist, specializing in child and adolescent psychiatry, with a sub-specialization in the treatment of child and adult Attention Deficit Disorder (ADD). His letter was written, at the Union’s request, to support Mr. Huvos’ “effort to be reinstated to his previous position of employment with the Liquor Control Board of Ontario (LCBO).” In the letter, Dr. Hoffer states that he is “in a unique position to comment on Mr. Huvos” since he has known him since the grievor was a young boy, and he would meet with him from time to time to “gauge his ongoing development into young manhood.” He did so at the suggestion of the grievor’s mother, who was a patient of his, particularly after the grievor’s parents separated and later divorced, and his father ceased having contact with the family.

In early November 2002, the grievor started seeing Dr. Hoffer professionally about his own emotional state “with respect to the impending break-up of his first serious romantic relationship with his girlfriend…” Dr. Hoffer’s letter states:

When I met with Boyd on November 6, 2002, he described himself as being “totally devastated”. He displayed a severely depressed mood and wept frequently in the session. He displayed numerous endogenous vegetative signs of depression (diminished appetite, sleep disturbance, decreased energy level, and anhedonia). I encouraged him to try to maintain perspective and to also initiate antidepressant medication (Effexor XR) and follow-up therapy sessions.

Dr. Hoffer states that the grievor started to show signs of mood improvement but that the grievor and his girlfriend continued a cycle of breaking up and getting back together which prevented him from fully recovering from the depression. He wrote: “He was still vulnerable, depressed, and fragile during those subsequent months.”

Dr. Hoffer further states that “[t]here were three more complicating factors during this critical time.” First, the grievor started drinking. The letter states: “His abuse of alcohol in this critical period contributed, I believe, to the impairment of judgement that resulted in his taking money from work.” Secondly, according to Dr. Hoffer, the grievor has Attention Deficit Disorder, which, combined with “the abuse of alcohol contributed to a state of “disinhibition’”. Dr. Hoffer wrote:

The adult ADD symptoms that Boyd was prone to included not just inattention but also impulsivity…. More specifically, his capacity to make proper decisions and be fully aware of the consequences of his actions was in jeopardy. The addition of the disinhibiting substance (alcohol) essentially “greased the skids”, rendering his normal compensatory inhibition relatively ineffective.

Thirdly, the grievor had moved out on his own just a few weeks prior to the onset of his depression. Dr. Hopper wrote: “With the threatened breakup of his first love relationship, the relative absence of his mother’s support and presence enhanced Boyd’s feeling of desperation and loneliness.”

Dr. Hoffer’s letter states as follows:

These factors all mitigated towards Boyd making the grievous mistake of stealing money from his work. The presence of these factors makes more explicable his uncharacteristic action but does not excuse him from the fact that he stole from his employer and broke the law. To his credit, Boyd acknowledged his error and pleaded guilty to the charge. He felt deep shame and remorse, as was appropriate. He regretted not having told me about his actions at the time but he felt too foolish and ashamed to speak with me. (Of note, after his arrest, he never once denied his wrongdoing to me.)

The doctor wrote that since the grievor’s arrest, he “has taken a number of very positive steps to commit himself to resuming a life of honour and integrity.” He attended several meeting of Alcoholics Anonymous “to galvanize his understanding of the severe impact alcohol abuse could have on him.” He accepted the ending of his relationship with this girlfriend. He attended therapy sessions and “is no longer depressed.” He has “scrambled hard to find even temporary work” and is “committed to taking medication for his ADD symptoms, if required and indicated.” The doctor further notes that he had taken all of these steps “at a time when his day-to-day life has been difficult.”

Dr. Hoffer concluded with the following:

I would like to summarize to this point. Boyd is a decent young man of good character. I would not request (and recommend) compassionate consideration for him if I believed he was at any risk for re-offending. But there are important aspects for those who make the final decision about Boyd to consider. His mother struggled heroically with multiple jobs to provide for her three children as a sole support mother. He had no male role model in his life after his father’s desertion of the family. He struggled with ADD all his life. And yet he persevered. He attended college. He worked part-time jobs to help his mother. He was never “given” anything – he never received a break. He found full-time work and committed himself to maintaining his employment. And, following his first serious depression, brought on by loss and his attendant deep feelings of rejection and abandonment, developed a problem drinking pattern. Then, foolish, desperate and depressed, he made a bad mistake.

Boyd deeply hopes that he will be given the opportunity to resume full-time employment and to redeem himself through his honest effort. I recommend him to your compassion and wisdom.

The grievor, at the hearing, confirmed much of what was contained in Dr. Hoffer’s letter. He stated that he started to see Dr. Hoffer in November 2002, because he was going through a “bad breakup” with his girlfriend, which was having a bad affect on him and he sought counseling. Although things initially improved, in late December, his girlfriend cut off all contact with him. This resulted in him drinking more – at home, in bars and at work. In terms of his use of alcohol, the grievor testified that he was drinking “close to every day” and the number of drinks “varied”, from “two beers and up.” He stated that he would drink at home, at work and bars. On cross-examination, he stated that his drinking was “mostly at bars.” He could not recall if he drank before or at work on February 14 or February 15. He “probably” did but it was “possible” he did not. Although he knew at the time that he was drinking too much, he did not believe that he was an alcoholic. He testified that in February 2003, he was a “mess”, “confused” and “not thinking straight.”

Mr. Huvos admitted that he took all of the actions set out in the Agreed Statement of Fact. Prior to this, however, he stated that he had never stolen money and had never been in trouble with the law. When asked to explain why he did it, the grievor provided a number of reasons. It “had to do with the drinking”, his “mind was not functioning” and he “did stupid things which I regret”, and it was “to compensate for the loss of my girlfriend.” Later, when asked what he used the money for, he stated that he used it to “buy alcohol” and in his “search for a place to live, that was part of it.” On cross-examination, he acknowledged that he stole the money to help pay for a condo that he wanted to purchase.

The grievor testified that he felt “horrible” about his actions, and felt “remorseful.” He stated that he let a lot of people down by his actions – his friends, his family and his employer. He testified that he was “very sorry for what I did.” When asked what he would say to the District Manager to convince him that he could trust him again, the grievor responded that he was very “sorry” for his actions, that he made a “big mistake”, that he was receiving counseling and had attended a few meetings of Alcoholics Anonymous which “scared him”. He asked to go back to a “normal life” and have a “fresh start.”

On cross-examination, the grievor admitted that he knew, at the time, that stealing was wrong. He knew it was wrong to incorrectly complete a void and an RTS form. He knew he was required to provide receipts to customers. He further understood that he was still on probation at that time. . He testified that he advised his manager that he was having some personal problems in late November, and that his manager told him that if he needed to talk, he could approach him. The grievor did not follow-up or advise his manager of his alcohol problem. He stated, on re-examination, that he was embarrassed, he did not want him smelling alcohol on his breath, and he did not know how his manager would respond to what he was doing. The grievor acknowledged that he did not take his ADD medication even while employed and he received prescription drug benefits, but explained, on re-examination, that he had earlier rebelled against the drug. He now believed, after all that had happened, that the medication might help him be better at work and help with his decision-making. The grievor acknowledged, on cross-examination, that before this hearing he had not apologized to anyone at the LCBO, but explained that he was “told not to contact anyone.”

In response to questions that I posed, the grievor stated that he did tell Dr. Hoffer that the money he stole, in part, was for a place to live, and that he had “totally cut down” his drinking. He was not in a formal rehabilitation program, but was working with Dr. Hoffer on the issue.

Decision

There can be no question, as the Union concedes, that the Employer had just cause to discharge the grievor. As a CSR, the grievor held a position of trust. He performed cash and stockroom duties. He ran shifts, which placed him in control of the store with control of the keys to the store and the keys to the cash register. He was required to balance the deposits and place deposits into the safe. The evidence is undisputed that the grievor abused that position of trust. Over a two-day period, on seven separate occasions, the grievor voided actual transactions and processed fictitious “return to stock” forms, stealing a total of $376.40 for his own personal use. His actions were an abuse of trust of his position, the Employer and the public. His actions clearly constituted cause for discharge.

In OBLEU (Wells) and LCBO (1982), GSB No. 2/82 (Verity), the Board stated as follows in regard to theft at the LCBO, at p. 9-10:

Theft or attempted theft in any form from any Employer by an Employee, regardless of the value of the stolen goods, does constitute just cause for the imposition of discipline by the Employer. Dishonesty in any form is completely unacceptable to the Employer-Employee relationship. Theft or attempted theft of the Employer’s property by an Employee is a fundamental breach of the trust relationship between the Employer and the Employer. The Liquor Control Board of Ontario has the right to anticipate a high degree of honesty from its Employees, and a deviation from that standard must be dealt with in keeping with the gravity of the offence.

The issue to be decided is whether there are compelling mitigating circumstances such that a penalty other than discharge is just and reasonable in all of the circumstances. As set out in Re Canadian Broadcasting Corporation and Canadian Union of Public Employees (1979), 1979 CanLII 4015 (CA LA), 23 L.A.C. (2^d) 227 (Arthurs), under a “corrective discipline” approach, theft is not always automatic grounds for discharge and various mitigating factors may justify the substitution of a lesser penalty. The potential mitigating factors “bear upon the employee’s future prospects for acceptable behaviour…” (23 L.A.C. (2d) at p. 230).

In OBLEU (Reed) and LCBO (1992), GSB No. 1165/91 (Watters), the Board stated as follows in regard to a case of theft, at pp. 9-10:

[G]iven the seriousness of the offence of theft, we think that the penalty of discharge is, prima facie, an acceptable Employer response to such conduct. This is not to suggest, however, that it must be the automatic response in every case. In determining the appropriateness of the response the Employer, and indeed this Board, must have regard to any mitigating circumstances of a persuasive nature. This includes any evidence existing which would suggest that the employee may be rehabilitated through other forms of corrective discipline less than discharge.

In Re Canadian Broadcasting Corporation, supra, Abitrator Arthurs listed a number of factors which bear upon an employee’s future prospects for acceptable behaviour. They included the following:

1. Bona fide confusion or mistake by the grievor as to whether he was entitled to do the act complained of.

2. The grievor’s inability, due to drunkenness or emotional problems, to appreciate the wrongfulness of his act.

3. The impulsive or non-premeditated nature of the act.

4. The relatively trivial nature of the harm done.

5. The frank acknowledgement of his misconduct by the grievor.

6. The existence of a sympathetic, personal motive for dishonesty, such as family need, rather than hardened criminality.

7. The past record of the grievor.

8. The grievor’s future prospects for likely good behaviour, and

9. The economic impact of discharge in view of the grievor’s age, personal circumstances, etc.

Counsel for the Union candidly acknowledged that some of the factors listed in the Re Canadian Broadcasting Company, supra, assisted the grievor and some did not. I agree. There was no bona fide confusion or mistake by the grievor as to whether he was entitled to do the acts complained of. It was wrong, and the grievor knew it was wrong. His actions were not impulsive. They were clearly thought out and intentional. The harm was not trivial. There was no sympathetic personal motive for the dishonesty. The motive was to obtain extra money to purchase liquor and buy a condo.

A key question in this case is the grievor’s “inability, due to drunkenness or emotional problems, to appreciate the wrongfulness of his act.” In this regard, the evidence of Dr. Hoffer is paramount. According to Dr. Hoffer, the grievor’s normal inhibitors were not functioning properly due to an unfortunate combination of factors – the grievor’s depression over the loss of his first serious girlfriend, his resulting abuse of alcohol, his leaving home and his ADD which involved impulsivity. In the doctor’s words: “[H]is capacity to make proper decisions and be fully aware of the consequences of his actions was in jeopardy. The addition of the disinhibiting substance (alcohol) essentially ‘greased the skids’, rendering his normal compensatory inhibition relatively ineffective.”

The Employer submits that little weight should be given to Dr. Hoffer’s letter. Counsel contends that Dr. Hoffer was motivated by his personal relationship with the grievor and his family and that the underlying events which are referred to in Dr. Hoffer’s analysis occurred well before his acts of theft. It further submits that Dr. Hoffer’s letter fails to establish a causal connection or nexus between the grievor’s problems and the theft. The Employer notes that the “triggering events” all occurred several months before the February thefts – the grievor’s girlfriend cut-off all contact in December, the grievor started drinking at that time, and he had moved out of his mother’s home some time in October. In terms of the ADD, the Employer contends that while it may have lead to impulsive behaviour, the thefts in this matter were not impulsive acts. They were planned and thought out. The Employer also notes that even though the grievor was seeing Dr. Hoffer since November 2002, he did not mention the thefts to him until he after he was arrested, which should be taken into consideration when assessing Dr. Hoffer’s letter. In the Employer’s submission, in February 2003, the grievor was simply an employee with a number of personal problems, not medical problems which caused his acts of theft.

The case law establishes that there must be a causal connection between the acts of theft and the grievor’s condition at the time. In OPSEU (Menzies) and Ministry of Transportation (1991), GSB No. 751/91 (Waisglass), the Board determined that the acts of theft (36 over a 12-month period) were related to an unusual accumulation of emotionally stressful experiences in the grievor’s family. In OBLEU (DePratto) and LCBO (1996), GSB No. 1834/95 (Roberts), the Board determined that the grievor’s acts of theft were due to his being in a “perpetual fog” caused by abuse of prescription drugs and depression. In contrast, in OBLEU (DeLaurentis) and LCBO (1995), GSB No. 1063/93 (Marszewski), the Board did not accept the grievor’s testimony that the thefts were the result of his “alcoholism”, and “there was no other evidence which established a connection between the Grievor’s alcoholism and his thefts at the cash register.”

In this case, after much consideration, I conclude that the letter provided by Dr. Hoffer falls short of establishing a clear causal connection between the grievor’s medical/emotional situation and his thefts. The letter from Dr. Hoffer places a great deal of significance on the grievor’s “abuse of alcohol” and “problem drinking” which Dr. Hoffer “believed” impaired his judgement. The letter states that the grievor’s depression about his girlfriend and ADD placed his “capacity to make proper decisions and be fully aware of the consequences of his actions…in jeopardy.” The addition of alcohol then “greased the skids”, “rendering his normal compensatory inhibition relatively ineffective.”

The grievor’s evidence regarding his drinking, however, does not establish an abuse of alcohol. Although he was drinking “close to every day”, on both direct and cross-examination he stated that he had “two plus” beers a day. He drank “mostly at bars” although he did drink at home and at work. Significantly, he did not recall if he had been drinking on the two days in question when the seven acts of theft occurred.

The grievor’s evidence of his alcohol use stands in marked contrast to the evidence in Re OBLEU (DeLaurentis), supra. In that case, the grievor testified that he drank one 26 ounce bottle of whiskey or rye daily, that he started drinking in the morning, continued over lunch, then again on his way home from work. Despite this evidence, the Board found that the grievor failed to establish that his thefts were prompted by his alcoholism. The Board held at p. 16:

[W]e cannot accept the Grievor’s attempt to transfer the responsibility for the thefts from himself to his alcohol dependency. It was also clear from the Grievor’s own evidence that he was aware of the Board’s policy with respect to theft. We find that the Grievor knew exactly what he was doing, namely, that he knew that he was knowingly and deliberately stealing from the employer.

In this case, there was no evidence and no submission that the grievor was an alcoholic or unaware of his actions due to the drinking. This is a significant fact which distinguishes this matter from other cases. In OBLEU (Wells), supra, the Board concluded that the grievor was an alcoholic and that his “chronic drinking problem” led to erractic behaviour. In OBLEU (Reed), supra, the Board accepted the grievor’s drug addiction as the cause for his thefts. In OBLEU (DePratto) and LCBO (1996), GSB No. 1834/93 (Roberts), the Board determined that the grievor’s abuse of prescription drugs put him in a “perpetual fog” and that it was clear that “but for the grievor’s condition at the time, the thefts would not have been committed.”

In this case, the contention, instead, was that the grievor’s normal inhibitions were not functioning properly due to his emotional state and ADD combined with his abuse of alcohol. In my view, however, one of the key factual predicates of Dr. Hoffer’s analysis – the grievor’s abuse of alcohol - is not sufficiently supported in the evidence. When all of the evidence is considered as a whole, the letter from Dr. Hoffer does not establish a medical cause for the grievor’s actions.

The evidence also does not establish that the thefts were “impulsive.” The definition of “impulsivity” provided by Dr. Hoffer, based on the Utah Criteria for Adult ADD, states:

Minor manifestations include: talking before thinking things through; interrupting other conversations, impatience (e.g., while driving); impulse buying. Major manifestations ...include: poor occupational performance; abrupt initiation or termination of relationships…, antisocial behavior such as joy-riding, shoplifting; excessive involvement in pleasurable activities without recognizing risks of painful consequences (e.g., buying sprees, foolish business investments, reckless driving.) Subject makes decisions quickly and easily without reflection, often on the basis of insufficient information to his own disadvantage; inability to delay acting without experiencing discomfort.

None of these manifestations are evident in the grievor’s thefts. The seven incidents over two days were not “shoplifting” but intentional acts. The number of incidents and the variety of methods used – particularly the creation of the fictitious Stu Planter, the return which stated that the customer had “no cash” when he had paid in cash, and the time when the grievor “looked around” before inserting his key into the cash register and processing a fictitious void – do not indicate that the thefts were impulsive acts, as set out in the ADD criteria.

Further, the explanation provided in Dr. Hoffer’s letter does not comport with the grievor’s admission, on cross-examination, that he knew, at the time, that what he was doing was wrong. Dr. Hoffer’s belief that the grievor’s judgement was impaired cannot override the grievor’s admission that he knew what he was doing. He may well not have been thinking about the consequences if he got caught. As he testified, he “wasn’t thinking” at the time. But he still knew he was engaging in theft; he knew what he was doing was wrong.

Another factor which works strongly against the grievor is his probationary status. The Employer relies heavily on the fact that the grievor was on still on probation at the time of his termination. It asserts that the standard for just cause for a probationary employee is a less stringent standard. In support, it cites to OBLEU (Ramji) and LCBO (2002), GSB No. 1604/00 (Dissanayake) and OBLEU (Filho) and LCBO (2003), GSB No. 1728/01 (Abramsky). The Union, in contrast, asserts that the grievor’s probationary status is not relevant to the issue of just cause - the Employer clearly had that. Instead, it asserts that it is only relevant to establish that he did not have a lengthy record of employment, although it submits that his period as a casual employee cannot be ignored.

The grievor, at the time of his termination, had worked for the Employer for four years. Most of that period was as a casual retail employee. His testimony was uncontradicted that he received no discipline during that time, and no problems with his performance were brought to his attention. Nevertheless, the grievor, as a full-time CSR, was still on probation at the time of his termination. It is a factor which must be considered in determining whether a penalty other than discharge is just and reasonable in all of the circumstances, although his prior service cannot be completely ignored.

The evidence establishes that the grievor was aware, at the time of the thefts, that he was still on probation. His status as a probationary employee is significant for two reasons. First, the grievor’s “past record” and “equity” in his job is limited. He is not a long-service employee, even if his casual service is considered. The second reason has to do with deterrence.

In OBLEU (De Laurentis), supra, the Board cited a decision of Arbitrator Burkett in Re Goodyear Tire Inc. and U.R.W., Local 232 (1985), 1985 CanLII 5420 (ON LA), 18 L.A.C. (3d) 65, at p. 68:

While I accept the company submission that any theft of company product is a serious offence, I do not accept that discharge should be the automatic response in every such case. Indeed the recent jurisprudence holds that the severity of the penalty in a theft case should be determined on a review of a number of factors including the service and record of the grievor, the value of the goods, the contriteness of the grievor, the impact of the penalty upon the grievor having regard to his age and skill, and most importantly, the need for general deterrence. It is universally accepted that general deterrence is a legitimate and necessary consideration in determining the severity of the discipline in a theft case….

As noted in Re OBLEU (Blackmore) and LCBO, GSB No. 315A/84 (Draper), quoted in Re OBLEU (Reed), supra at p. 12, “the LCBO is especially vulnerable to theft and attempted theft of its property. Its employees are inevitably presented with tempting opportunities for dishonest behaviour and there are practical limits to the security measures that can be taken to guard against the misappropriation of money or goods.”

Accordingly, deterrence is a very legitimate concern, and the grievor’s probationary status is a significant consideration in determining whether or not to substitute a penalty other than discharge. I am very concerned about sending a message that a probationary employee who engages in seven acts of intentional theft cannot properly be terminated for his conduct.

There are, however, several factors in the grievor’s favour. From the grievor’s testimony at the hearing, it is clear that he is very remorseful for his actions. He accepted full responsibility for his conduct and acknowledged that it was wrong. While the Employer quite correctly points out that the grievor did not admit his theft at the time, as did the grievors in some of the cases cited by the Union, the grievor’s lack of a substantive response to the NOID was based on the instructions of his criminal lawyer not to say anything until the criminal charges had been resolved. Under these circumstances, the grievor’s failure to discuss his actions cannot be held against him. In OBLEU (Reed), supra, the grievor initially admitted to the theft when arrested, then declined to elaborate at a meeting with management. The Board ruled that “[w]e do not consider his reticence during the meeting of June 13, 1991 to be material as he was acting pursuant to the instructions of the lawyer handling the criminal charge.” The same applies here.

The grievor testified that he realized that he had disappointed a lot of people, including his family, his friends and the employer. He apologized to the District Manager at the hearing. The Employer asserts that this apology did not come until the hearing, which is too late in the day to be meaningful. Normally, in my view, apologies at an arbitration hearing are of limited value, but in this case, the grievor explained that he had been told not to contact the employer. There were no follow-up questions to explore this instruction, and the instruction, on its face, is not unreasonable given the circumstances of his termination and existence of the grievance. Consequently, I conclude that the hearing may well have been the first opportunity that the grievor had to apologize to the employer since his termination. I also conclude that the grievor’s apology was sincere.

The Union further asserts that the grievor’s breach of trust was an aberration in his normal conduct, although not a “momentary aberration.” It points out that there is no evidence or suggestion that he had engaged in theft at any time before. The Union’s position finds support is Dr. Hoffer’s letter where he states that “the circumstances of [the grievor’s] taking money was, and is, completely out of character for him.” Dr. Hoffer describes the grievor as a “decent young man of good character” who made a “bad mistake.”

The case law appears to take two approaches to “aberration” as a mitigating factor. The first view is that the act must be a “momentary aberration” as in a spur of the moment decision rather than a pre-meditated act. The other approach looks at whether the conduct was an “aberration” from the grievor’s usual trustworthy behaviour. OPSEU (Menzies), supra.

In OBLEU (Reed), supra, the grievor, a casual clerk stole money, on “one or two” occasions, from the LCBO by “under-ringing” customer purchases and pocketing the difference. He was arrested and pleaded guilty to theft. The Board held at p. 13 that “the theft was not a momentary aberration if defined in temporal terms” and that each theft was “deliberate and well planned.” But it continued: “Nevertheless, we think that the conduct may be viewed as an aberration in the context of the grievor’s overall work record with the Employer.” The grievor had worked as a casual clerk for 3 ½ years and there was no evidence of any other work-related problems. He acknowledged that at the time he was abusing drugs and engaged in the theft to support and fund his drug use. The Board concluded that his “normal judgement and conduct were distorted during this period of heavy drug use.” (Decision at p. 13).

In this case, the grievor’s seven acts of theft clearly were not a “momentary aberration.” The evidence suggests, however, that they may have been an aberration from the grievor’s usual behaviour. There is no evidence of any past work-related problems or prior suspicion about the grievor’s cashiering.

Further, since the grievor’s termination, he has taken a number of actions which suggest that his personal life and employment may be rehabilitated. As stated in Dr. Hoffer’s letter and confirmed by the grievor at the hearing:

He attended some meetings of Alcoholics Anonymous to galvanize his understanding of the severe impact alcohol abuse could have on him. He accepted the ending of the relationship with his girlfriend. He attended to therapy sessions with me to restore his mood and is no longer depressed. He has scrambled hard to find even temporary work. He has committed to taking medication for his ADD symptoms, if required and indicated. …

These factors are significant and make this a truly difficult case to decide. I have also considered Dr. Hoffer’s representations about the difficulties in the grievor’s early life. Unfortunately, these factors, without more, do not establish “compelling mitigating circumstances” which demonstrate that a penalty other than discharge is just and reasonable in all of the circumstances. The nature of the grievor’s thefts in this case is particularly egregious. They involved seven deliberate acts of theft in two days, and were only caught because a hidden camera was placed over the grievor’s cash register. The amount stolen, $376.40 in two shifts, was also significant. There was no sympathetic personal motive for the thefts. He abused his position to obtain extra money. His status was that of a probationary employee at the time. He knew what he was doing at the time was wrong.

Another final factor to consider is the economic impact of the discharge in view of the grievor’s age and personal circumstances. The grievor is 25 years old and has, not surprisingly, been unable to find full-time work since his termination. He testified about the efforts he has made to find work, and Dr. Hoffer’s letter addressed that point as well.

The Union relies on Re Carling O’Keefe Breweries of Canada Ltd. and Canadian Union of United Brewery Workers, Local 325 (1982), 1982 CanLII 5053 (ON LA), 6 L.A.C. (3d) 412 (McLaren), in which the arbitrator reinstated a 19-year old employee, with 1 ½ years of service, who stole, on one occasion, two cases of beer from his employer. He admitted to the theft following the grievance procedure and again at the hearing. He wrote a note of apology to the employer and was “truly contrite.” The arbitrator found “the personal and economic effect on the grievor of a continued discharge to be too severe a penalty for him to bear for the rest of his life.” Although he knew better than to engage in the conduct in which he did, and it was not a “spur of the moment” action, the arbitrator ruled that “his youthfulness ought to be taken account of.” He continued at pp. 414-415:

If I were not satisfied that the trust could be retrieved then I would not mitigate this discharge. I do so in this case because I am impressed that the grievor is a young man of good character who has made one drastic mistake in his life. He ought to be given another chance. ...

The arbitrator imposed a six-month suspension to ensure deterrence, and reinstated the grievor, although the company did not have to return him to his former job if it felt it could not trust him.

In this case the grievor is 25, not 19. His actions do not appear to be in the nature of a single “youthful indiscretion.” They were repeated, intentional acts of theft.

Nor am I convinced that the level of trust essential to the employment relationship could be retrieved. The grievor’s position involves substantial cash responsibilities. He ran shifts and possessed keys to the store and keys to the cash register. He was required to balance deposits and place deposits into the safe as well as assign and supervise other employees. Although counsel for the Union suggested that conditions could be attached to the grievor’s reinstatement, including no cash responsibilities, there was no evidence on the feasibility of that, nor of any positions on the retail side which do not involve cash handling. For a CSR, cash handling and trust are essential to the job.

Consequently, after considering all of the evidence and the arguments of the parties, I cannot conclude that I ought to exercise my discretion to substitute another penalty in this matter. The grievance is therefore dismissed.

Issued at Toronto this 31^st day of October, 2003.