Re The Crown in right of Ontario (Liquor Control Board of Ontario) and Ontario Liquor Boards Employees' Union

[Indexed as: Ontario (Liquor Control Board) and O.L.B.E.U. (Devlin) (Re)]

File No. 2002-0052 Ontario Crown Employees Grievance Settlement Board M.V. Watters

Heard: January 6, and April 7 and 8, 2004 Decision rendered: May 13, 2004

A copy of the collective agreement is attached hereto as Appendix "A". Effective November 5, 2000 the Grievor was assigned to Store 182, which is an "A" store located in Port Credit. The Grievor reported to the store manager, Heather Cameron.

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

EMPLOYEE GRIEVANCE alleging unjust discharge. Grievance dismissed.

J. Noble, for the union. G. Fitzgerald, for the employer.

The Grievor was on duty on January 26, 2002. At approximately 2:31 p.m., the Grievor attended the warehouse area of the store that is located in the basement. He selected one case of Remy Martin VSOP Cognac,

AWARD On the first day of hearing, held on January 6, 2004, the parties filed the following Agreed Statement of Facts: 1. The Grievor commenced employment as a casual employee in 1986, and was promoted to a permanent part-time employee effective October 31, 1988 and was promoted to a full-time customer service representative ("CSR") effective November 21, 1994.

CSPC#4101 and placed it on a conveyor belt which delivered it to the ground floor near the door at the back area of the store. He then returned to ground level and took the case of liquor out the back door without pay­ing for it. Shortly thereafter he re-entered the building without the product. The case consisted of twelve 750-ml bottles and the amount of loss to the LCBO was $904.20.

On February 7, 2002, the Peel Police charged the Grievor with one count of theft under $5,000.

The Grievor was issued a NOID dated February 7, 2002, attached hereto as Appendix "B".

The Grievor responded to the NOID by correspondence dated February 11, 2002, attached hereto as Appendix "C".

The Grievor's employment was terminated by correspondence dated February 25, 2002, attached hereto as Appendix "D".

10. The Grievor filed a grievance, at Stage 3, dated February 28, 2002, attached hereto as Appendix "E".

11. As part of the appeal process in the Grievor's application for Employment Insurance benefits, the Grievor provided a letter to Human Resources Development Canada. The letter is dated May 6, 2002 and is attached hereto as Appendix "F".

12. On September 12, 2003, the Grievor pleaded guilty to one count of theft under $5,000. He was sentenced to 6 months probation.

13. The Grievor is not seeking any back pay from the Employer as part of a remedy in this arbitration.

14. The parties agree that either party may supplement the above facts with additional viva voce evidence at the hearing of this matter.

Following the filing of the Agreed Statement of Facts, counsel for the Union advised that the grievor had just informed the Union on January 6, 2004 that he had a gambling problem at the time material to this dispute. I was further informed that, on the same date, the grievor brought the problem to his doctor's attention for the first time and that he requested a referral from his doctor to counselling for his gambling addiction. In response to a question from this Vice-Chairperson, it was learned that the grievor also failed to tell his criminal lawyer about this addiction for purposes of the criminal proceedings.

As a consequence of the above revelation, the Union asked that the hearing be adjourned for a period of six (6) months so that the grievor could commence a program of counselling. Counsel for the Union asserted that such an adjournment would be of benefit to this

process as it would lead to evidence from a counsellor relating to the grievor's rehabilitative potential. It was argued that any prejudice to the Employer from a grant of the order requested would be minimal given that there was no claim to back pay being advanced on behalf of the grievor.

The Employer opposed the request for an adjournment. Counsel for the Employer noted that the issue of gambling was being raised for the first time on the initial day of hearing and that it had not been the subject of discussion in any prior medical report. He argued that even if a gambling problem existed in January 2004, there was no way of establishing that such problem existed at the time of the theft in January 2002.

After considering the respective submissions, I indicated that I was prepared to adjourn the case for a period of two (2) months so as to permit the grievor to obtain the counselling he sought. I observed that it would very likely enable the Union to call a coun­sellor as a witness to speak to the grievor's rehabilitative potential. The parties were advised that any evidence forthcoming as a result of the adjournment would simply form part of the mix of evidence to be considered at the conclusion of the case in the determination of whether a substituted penalty should be imposed. In my judgment, a short delay of this nature was unlikely to prejudice the interests of the Employer. After delivering this ruling, the parties agreed to April 7, 2004 as the second day of hearing. In substance, this amounted to an adjournment of three (3) months' duration. At the hearing on the merits, the Employer did not call any wit-nesses. Instead, it relied on the Agreed Statement of Facts to support its case. The grievor and his sister, Ms. Jennifer Shannon Devlin, were the only witnesses called by the Union. The Employer elected not to present any evidence in reply. The grievor is forty-two (42) years of age and has a Grade XII education. He has three (3) teenage children, all of whom are in school. The grievor separated from his wife in or about 1993. By all accounts, it was an acrimonious separation. Following the separa-tion, the grievor's eldest child lived with him, while the two (2) youngest children resided with their mother. The grievor provides financial support to the latter two (2) children.

The marital breakdown resulted in the grievor experiencing stress, anger and emotional difficulties. Difficulties in securing and enforcing access rights to the children contributed to his upset and depression. Ultimately, these conditions caused him to consult his family physician, Dr. Ling L. Huang. The grievor testified that Dr. Huang then prescribed antidepressant medication as well as time away from the workplace. He claimed that the aforementioned medication did not improve his condition. As indicated in the Agreed Statement of Facts, the grievor was working as a full-time customer service representative ("CSR") in Store #182, located in Port Credit, at the time of the incident relevant to this dispute. Performance appraisals were filed in respect of the periods May 1995 — May 1997, July 1997 — February 1998 and March 2000 — March 2001. The first two (2) appraisals record that the grievor met all of the requirements of his position. He received an overall performance rating of "Solid Performance" on the most recent appraisal. I was informed that, apart from the incident here in issue, the grievor had a clear disciplinary record. The Union filed a letter of commendation forwarded to the grievor in September 2001 by the MMC Group thanking him for his support and assistance with Marine Festival 2001 and the Offshore Grand Prix of Canada. It was the grievor's evidence that he started gambling on a social basis in 1985 with his in-laws, whom he described as "racetrack fanatics". He testified that his gambling got progressively worse after the breakdown of his marriage. The grievor stated that, while he gambled at several racetracks, the bulk of his gambling was done at Woodbine as that location was easily accessible from both home and work. The grievor claimed that his gambling initially focused on horses and off-track betting. He advised, however, that his focus changed to slot machines following the opening of a casino at the Woodbine location in or about 1993.

The grievor advised that from the mid-1990s until January 2002, he would gamble as often as he could. He estimated that he gambled between four (4) and seven (7) days each week. The grievor described his behaviour at the Woodbine Casino as "erratic". In his words, he "always wanted to be there". He stated that, on occasion, he would stay at the casino till its closing at 3:00 a.m. The grievor maintained that he would spend between twenty dollars ($20) and

one thousand dollars ($1,000) per visit depending on what amount he had with him. He commented as follows with respect to the extent of his gambling: "If I had money, I'd spend it; if I didn't, I'd borrow it." The grievor indicated that he borrowed from both his family and friends to sustain his habit. He testified that he would mislead his family as to the reason for his need for funds. He stated that he did, however, tell his friends that he required money in order to gamble. The grievor stated that he borrowed money from between six (6) and ten (10) people and that three (3) or four (4) of these individuals were never repaid the fifty dollars ($50) to two hundred dollars ($200) which was owing to them. The grievor explained that his friends eventually stopped loaning him money, as he was not paying them back. At the hearing, the grievor acknowledged that his gambling behaviour was a problem and that it, ultimately, led him to steal from the Employer. The grievor asserted that as of the time of the incident, he was barely keeping his head above water financially. He stated in this regard that, "I was in a down, I couldn't get money anymore." The grievor claimed that he was gambling a lot in January 2002. He described himself as then being under considerable stress and unable to either think straight or prioritize his daily life. The grievor main-tained, however, that he stopped gambling on February 7, 2002, the day of his arrest, and that he has not gambled since.

As mentioned previously, Ms. Jennifer Shannon Devlin, the grievor's sister, gave evidence in this proceeding. Ms. Devlin works as a Legal Assistant. She advised that she was aware of the theft and her brother's conviction in respect of the charges laid.

Ms. Devlin testified that prior to 2001, she accompanied the grievor to gamble approximately six (6) times per year. She esti­mated that she saw him gamble about five (5) times in the one (1) year period preceding the theft. It was her evidence that they went to Woodbine Casino and Niagara Casino either spontaneously or on social occasions. She recalled that when they went gambling together, the grievor would spend whatever money he had with him and, at times, would access a bank machine to obtain more money. Ms. Devlin stated that she was not aware her brother had a gambling problem till mid-2002. She advised that the family then had a meeting to discuss how they could assist him financially. In her

words, the family members present were "leaning" on the grievor. Ms. Devlin testified her brother then informed the family that he had spent all of his money gambling and that gambling had led him to commit the theft. In a response to a question from this Vice-Chairperson, Ms. Devlin indicated that she last saw the grievor gamble at a family birthday event in August 2001. The incident material to this case occurred on January 26, 2002 while the grievor was working the day shift at Store #182. The grievor testified that around the lunch hour a person he knew from Woodbine Casino entered the Store. He stated that he knew this individual as Jack. He claimed that he did not know Jack's surname. The grievor advised that he had seen Jack on about six (6) occasions at the casino. He also believed he had seen Jack in Store #182 previously but was unsure if Jack knew that was his workplace. It was the grievor's evidence that he and Jack talked for a few minutes and that they then made "an arrangement" pursuant to which he would give Jack some of the LCBO's product in return for four hundred dollars ($400) to be paid later that evening at the casino. The grievor did not dispute the description of the transaction as contained in paragraph five (5) of the Agreed Statement of Facts. He maintained that he entered into this scheme as he wanted to go to Woodbine Casino that day but did not have funds available to do so. The grievor testified that Jack said he could do the grievor a favour, if the grievor would do him a favour in return. The grievor acknowledged that he quickly caught the gist of Jack's suggestion. He claimed that he was "hesitant at first" but that he decided to participate in the plan as it would enable him to attend the casino later that day. I recorded the following comment relating to his motivation at the time: "then it just came inside of me, I just have to do this because I want to go". The grievor asserted that Jack, contrary to their arrangement, never showed up at the casino. Indeed, he claimed that he never saw Jack again. The grievor noted that he ultimately received nothing for the case of liquor which he gave to this acquaintance. The grievor acknowledged that he stole to feed his own purposes. During his testimony, he expressed the following sentiments concerning his conduct:

I feel bad about it. I know it was a stupid thing to do. However, I don't do it anymore. I don't gamble. I have a ton of things to occupy my time, my kids.

The grievor denied that he ever engaged in similar transactions with Jack or any other person. He further denied committing any other acts of theft from the LCBO or elsewhere to subsidize his gambling.

Following the events of February 7, 2002, the grievor responded to the Employer by letter of February 11, 2002. The letter directed to Mr. Gus Loukas, District 12 Manager, reads:

I cannot express my apologies enough to yourself or my fellow staff-members. My career with the L.C.B.O. means very much to me and still offer my services if so required. The L.C.B.O. has treated me very well, and alleged incident I would like to discuss further in detail with yourself and Board Members. I sincerely apologize again for any embarrassment or distrust that this problem has caused by collegues (sic) and friends.

The grievor's initial application for Employment Insurance bene­fits was denied. As a consequence, he wrote the following letter of May 6, 2002 to Human Resources Development Canada:

Attention: Appeals Division Dear Sir/Madam: In response to your letter dated April 19, 2002 denying me Unemployment Insurance benefits. I am appealing this decision.

According to your agent, speaking with an employee of the L.C.B.O., she was told I lost my employment with them due to an alleged incident, whereby they claim they have a video of me stealing product.

This is totally biased information given by the company. It would be more appropriate to have said for "cause". There is no evidence of theft. What they have is a surveillance video of myself taking out garbage, as this is normal for this establishment. This incident is currently in the courts and the company is dragging its heels in providing my lawyer access to pertinent information. It is also in the hands of the Union who is fighting this dismissal on my behalf. The information the company is providing is preventing me from benefits or any other gainful employment.

I understand it is against the law to label anyone with slanderous allegations. Therefore, I believe there is no basis for being denied Unemployment Insurance benefits.

I look forward to hearing from you. Yours truly, David B. Devlin cc. Nick Faieta, LLB

In cross-examination, the grievor agreed that his reference in the letter to "taking out garbage" was a fabrication. He further agreed that he accused the LCBO, in his correspondence, of lying to Human Resources Development Canada. By way of explanation of the letter's content and tone, the grievor stated that he had received no money and there was no other way he could get any. Ultimately, the grievor did obtain Employment Insurance benefits. In response to a question from counsel for the Employer, he seemed to agree that he was not really entitled to the benefits. The grievor indicated that he has not repaid the benefits to date but asserted he would do so if that was made a condition of reinstatement. As noted in paragraph twelve (12) of the Agreed Statement of Facts, the grievor pleaded guilty on September 12, 2003 to one (1) count of theft under five thousand dollars ($5,000) and was sen­tenced to a period of six (6) months' probation. The Probation Order stated, inter alia, that the grievor was to "commence any counselling as recommended by your probation officer with relation to depres­sion or otherwise". The grievor testified that his Probation Officer advised him to continue seeing his family doctor. The above-mentioned period of probation was completed by the grievor. It is clear that at the sentencing, reference was made to the grievor's marital problems and to his related depression. The grievor's problem with gambling was not the subject of any comment as the grievor did not inform his criminal counsel of the problem. In cross-examination, the grievor acknowledged he under­stood that any explanation he might provide for his misconduct would be helpful at the sentencing stage of the process. The grievor offered a variety of reasons for not telling his counsel that he had a gambling problem. He asserted that he was under the assumption he would "win the criminal case". He then added that he thought he would only get probation and for that reason elected not to tell his lawyer. Lastly, the grievor claimed he neglected to mention the problem because he was in denial. The grievor was not ordered by the criminal court to make resti­tution to the LCBO. It was his evidence that he indicated he was prepared to make restitution and that his parents had a cheque with them on the day of sentencing. It is clear, however, that the Probation

Order did not on its face require him to make restitution. The grievor testified that he returned to the Court Office on several occasions to question the omission. Additionally, he spoke to both his lawyer and Probation Officer about the matter. Ultimately, the grievor on January 6, 2004, this being the first day of hearing in this pro-ceeding, provided a series of post-dated cheques to the Employer, each in the amount of twenty dollars ($20) payable on the fifteenth of each month commencing in January 2004. The grievor stated he would continue to provide cheques in this fashion until the debt is paid off. The grievor testified that the criminal conviction had a "devastating effect" on him and his family. He stated that his parents and siblings now look at him in a different light. He expressed the opinion that "it will take a while to earn their trust back". The grievor further asserted that he has learned a lesson and that a similar act is "certainly not going to happen a second time".

Ms. Devlin stated that after losing his job at the LCBO, the grievor became depressed. It was her assessment that he lost his pride and self-esteem. She noted that from a financial perspective, the loss of this job "almost ruined him". Ms. Devlin testified that the grievor worried about losing custody of his oldest child and access to the two (2) younger children. She explained that this concern was due, in part, to the grievor's inability to make child support payments. In Ms. Devlin's words, the grievor "lost everything when he lost his job". She further observed that after the conviction, her brother was extremely depressed and withdrawn to the extent that his family became very concerned about his emotional well-being.

The grievor testified that he secured two (2) jobs in the Fall of 2003. During the day, he welds electrical systems on motorized vehicles at a steel-manufacturing company. The grievor advised that he obtained this job through a friend who works for the company. On two (2) to three (3) evenings each week and on weekends, the grievor works at a restaurant. It was his evidence that the combined income from these two (2) jobs does not match the salary he made when working for the Employer. He also noted that he now sees little of the child who resides with him given his work schedule. As previously mentioned, the grievor did not disclose his gambling problem to the Union until the first day of hearing on January 6, 2004.

Thereafter, he made arrangements to seek assistance through Gamblers Anonymous. He stated that he now attends Gamblers Anonymous meetings twice each week. The grievor advised that their program is geared towards having the gamblers recognize their prob­lem and avoid denial. Additionally, steps are offered to avoid or minimize the impulse to gamble. All of this is done in a group setting. A seventeen (17) page booklet was filed in this proceeding outlining the history of Gamblers Anonymous, a description of the organization, the Recovery Program, the Unity Program, compulsive gambling and Gamblers Anonymous and "Twenty Questions". In cross-examination, the grievor was asked why he sought out Gamblers Anonymous given his evidence that he immediately stopped gambling in February 2002 upon his arrest. He replied that his counsel suggested "it would be helpful" to him. The grievor repeated that he is no longer in denial and that he does not gamble any more. He observed that "to a certain degree" Gamblers Anonymous has helped him "recognize it was a problem". Ms. Devlin, in her evidence, expressed her under­standing that the grievor attends two (2) meetings of Gamblers Anonymous each week. She stated that to the best of her knowledge, her brother is not gambling. It is her belief that he "has been trying very hard to rebuild his life". The sole medical report of any substance, which was filed in this case, is a medical note of Dr. Huang dated August 13, 2003. Her report reads:

Re: David Devlin DOB: 14/Oct/1961

David came to see me on March 18th, 2002 with symptoms of depression, i.e.: insomnia, anhedonia, no motivation, poor concentration, loss of appetite, mixed feelings of helplessness, anger, sadness, apathy and agitation due to issues with his employer. He was given Effexor (antidepressant) but stopped it after two weeks when he experienced an increase of feelings of anger towards the unfairness of his circumstances. Since then, he has seen me on several occasions for supportive psychotherapy, tension headaches, anxiety and depression. He also has been struggling financially and working in whatever job he can to survive.

From January 1994 to November 1997, he saw me regularly for supportive therapy due to depressed and anxious mood from marital breakup. He had to take stress leave from work for two months in June, 1997 when the stress was unbearable.

I trust this information is sufficient for your needs.

The grievor, in his evidence, acknowledged that he did not inform Dr. Huang of his gambling problem or that he stole from his Employer until the first day of this hearing. The grievor testified that, while he could acknowledge weakness stemming from his family problems, he did not want to exhibit any weakness related to gambling. He made the following comment on this aspect of the case: "I didn't want to be labelled as weak like an alcoholic or drug addict." With respect to his act of theft, the grievor advised that he did not inform Dr. Huang of same as he was still in denial as of March 2002. He added that, "it's not something you just tell people". During the course of the hearing, the grievor apologized for stealing from the Employer. He described his theft on January 26, 2002 as "an act of stupidity and selfishness". The grievor asked for reinstatement and indicated he would do anything asked of him in order to get his job back. In closing argument, counsel for the Employer reviewed the following authorities: Re Ontario (Liquor Control Board) and O.L.B.E. U. (Huvos) (2003), GSB No. 0710/03 (Abramsky) [reported 122 L.A.C. (4th) 238]; Re Ontario (Liquor Control Board) and O.L.B.E.U. (Linton) (1995), GSB No. 1429/92 (Gray); Re Ontario (Liquor Control Board) and O.L.B.E. U. (DeLaurentis) (1995), GSB No. 1016/93 (Marszewski); Re Ontario (Liquor Control Board) and O.L.B.E. U. (Leon Menzies) (1983), GSB No. 102, 126/83 (Weatherill); Re Ontario (Liquor Control Board) and O.L.B.E. U. (Hill) (1987), GSB No. 0054/86 (Draper); Re Grober Inc. and U.EC.W., Loc. 175 (Dwyer) (2002), 109 L.A.C. (4th) 53 (Williamson); Re Canada Post Corp. and C.U.P.W. (Zachar), [1998] C.L.A.D. No. 811 (QL) (Shime); Re British Columbia and B.C.G.E.U. (DeMelt) (2001), 102 L.A.C. (4th) 289 (Nordlinger); Re Public General Hospital Society of Chatham and S.E.I. U., Loc. 210 (1991), 23 L.A.C. (4th) 35 (Hinnegan); Re Durham Catholic District School Board and C. U.P..E., Loc. 218 (Pantalleresco), [1998] O.L.A.A. No. 664 (QL) (Roberts) [summar-ized 53 C.L.A.S. 332]; Re Livingston Distribution Centres Inc. and Teamsters Union, Loc. 419 (1996), 58 L.A.C. (4th) 129 (MacDowell); Re Molson Breweries (Toronto) and Canadian Union of Brewery and General Workers, Component 325 (Fillmore) (1994), 44 L.A.C. (4th) 398 (Mitchnick).

Counsel for the Employer argued that the above awards stand for the following propositions:

1. Theft is a fundamental breach of the trust required in an employ­ment relationship; 2. Discharge is prima facie the appropriate response to an act of theft on the part of an employee;

2. An onus exists on the Union to establish why the sanction of discharge is not applicable in the circumstances of the case;

3. If any incapacity or addiction is pleaded in an effort to mitigate the penalty, on the basis the employee is not wholly responsible for the act of theft, medical evidence must be led to establish the existence of the incapacity or addiction and to show a nexus between the problem and the theft. Further, medical evidence must be led to establish that the incapacitation no longer exists; 5. If a medical problem is asserted, there must be a prompt attempt to get rehabilitation; 6. Genuine remorse must be shown for the act leading to the discipline; 7. There must be a prompt admission of wrongdoing; 8. If any doubts exist about the grievor's inherent honesty, then the discharge must be upheld; and, 9. The factor of deterrence is a legitimate concern. Counsel for the Employer argued that, in this case, the grievor clearly arranged with a third party to commit a theft of product from Store #182. He suggested that the theft was carried out in a calcu­lated fashion and was not a spur-of-the-moment decision. In this regard, I was asked to conclude that the grievor's description of events involving Jack do not "ring true". Counsel noted that the grievor's conduct resulted in a criminal conviction.

Counsel referenced paragraph four (4) of the Agreed Statement of Facts which lists the grievor's duties, as follows: He ran shifts, which required him to be the person in control of the store, which required him to hold keys to the store, keys to the cash register, balance deposits and place deposits into the safe, and assigning work to and super­vising other employees during that shift.

On his analysis, the grievor occupied a position of trust in the Store. It was the Employer's submission that the trust necessary to sustain the employment relationship was shattered by the events of

January 26, 2002. Counsel further suggested that the grievor persisted in his dishonesty in his subsequent dealings with Human Resources Development Canada around Employment Insurance benefits. From the perspective of the Employer, the grievor provided a dishonest explanation of the circumstances in his letter of May 6, 2002 to Human Resources Development Canada. Counsel observed that the grievor made no effort to repay the benefits to which he was not strictly entitled. He also stressed that, in the aforementioned letter, the grievor accused the Employer of lying and being biased against him. It was argued that this letter reflected the grievor's "true feelings" towards the LCBO. In substance, counsel maintained that the grievor's act of theft, in conjunction with his subsequent conduct, calls into question the level of his inherent honesty.

On the Employer's assessment of events, the grievor failed to exhibit real remorse in the aftermath of his crime. Counsel referred to the grievor's letter of February 11, 2002 to Mr. Loukas in which he spoke of the "alleged incident" and "this problem". It was suggested that the apology contained therein was "hazy at best". Counsel further referenced the May 6, 2002 letter to Human Resources Development Canada mentioned in the paragraph imme­diately above. It was submitted that these two (2) letters demonstrate that the grievor failed to acknowledge the gravity of his wrongdoing. Counsel asserted that the grievor's expression of remorse at the hear­ing was not genuine. He expressed the opinion that "to the extent the grievor is sorry, he is sorry he got caught". On this point, counsel emphasized that the grievor did not attempt to make restitution to the Employer until after the first day of hearing, this being almost two (2) years after the incident resulting in his discharge. Counsel next turned his attention to the grievor's assertion that he had a gambling problem and that this problem caused him to steal from the Employer. Counsel argued that the grievor's evidence connecting the theft to a gambling problem is "completely unreli-able". In the alternative, he suggested that the grievor advanced this explanation as "an unjustifiable crutch to avoid taking responsibility for the theft". Counsel's arguments on this issue may be summar-ized, as follows: (i) counsel noted that the grievor did not tell Dr. Huang he had a gambling problem when he saw her in March 2002. Rather, he did

not inform her of the alleged problem until January 6, 2004, the first day of hearing in this case. On counsel's analysis, the grievor provided no satisfactory explanation for why he chose not to tell his family doctor about the gambling problem, and its effects on him, in a more timely fashion. He suggested that the grievor did not do so because he did not, in fact, have a gambling problem;

(ii) counsel observed that no medical evidence was presented to substantiate the existence of a gambling problem or addiction at the time of the theft or to establish that there was a nexus between such a condition and the misconduct. He observed that this type of supporting evidence was forthcoming in many of the authorities relied on by the Employer. Counsel argued that it is not enough for people to self-diagnose their addictions. In his view, the fact that the grievor enjoyed gambling does not mean he was addicted. He submitted, rather, that the grievor resorted to theft because he was short of money and wanted to go to the casino on the night of the incident. Counsel asserted that the need for money caused the grievor to steal from his Employer, not a gambling problem. It was further noted that the medical evidence filed related to depression. Counsel stressed that neither the grievor nor Dr. Huang suggested that the theft was connected to depression; (iii) counsel submitted it is significant that the grievor made no effort to obtain medical or other assistance for the alleged gam­bling problem until the first day of the hearing in this matter. In his judgment, the lack of a timely effort to address the problem suggests that it was not a legitimate problem but, instead, was one manufactured so as to provide an explanation for the wrongful conduct. Counsel emphasized that the grievor did not start a program with Gamblers Anonymous until after January 6, 2004 and, then, only at the suggestion of his counsel because it would be helpful to his position. Counsel described this initiative as a "strategic" or "tactical move". In any event, he argued that the evidence relating to the grievor's attendance at Gamblers Anonymous is irrelevant in the absence of any probative medical evidence;

(iv) counsel focused on the grievor's statement that he quit gambling in February 2002 and has not gambled since. It was

counsel's submission that this abrupt stop demonstrates that there was not a serious problem in the first place. Counsel also referred to the evidence as to the grievor's borrowing from friends to support his gambling habit. He noted that this evidence was uncorroborated and asked that an adverse infer­ence be drawn given that no independent witness was called by the Union to testify about the grievor's "out of control behavior";

(v) counsel referenced the fact that the grievor did not raise the gambling problem in the criminal proceedings while his other family and emotional problems were addressed. In counsel's view, this failure casts "extraordinary doubt" on the legitimacy of the claim as to the existence of a gambling problem, espe­cially given what the grievor potentially stood to lose from a conviction on the charge. He also stated it was important to recall Ms. Devlin's evidence that her brother told his family about a gambling problem in mid-2002. Counsel asserted that the grievor, therefore, could not have been in denial, as claimed; (vi) counsel noted that no medical evidence was presented in this instance to establish that any underlying condition has been cor-rected. Put another way, there is no medical or other expert evidence relating to the extent of the grievor's rehabilitation. Counsel argued that, as a consequence, it is impossible to conclude that the grievor's chances of reoffending in future are remote. Counsel for the Employer submitted that the sanction of discharge was "proportional" to the grievor's level of misconduct in all of the circumstances of this case. He suggested that the fact the grievor is a long-service employee should work against him in the sense that more trust is reposed in such an employee, such that they have a greater opportunity to commit acts of theft. In a similar vein, coun­sel argued that deterrence is a legitimate consideration in a case such as this. He maintained that a poor message would be sent to other employees if the grievor was reinstated. In his words, it would be "an encouragement, a virtual licence to steal". Ultimately, it was the Employer's position that there is no evidence to justify the grievor's reinstatement and, accordingly, the grievance should be dismissed.

The Union, in response, acknowledged that the grievor's act of theft amounted to serious misconduct which warranted some form of discipline. The Union's counsel submitted, however, that in all off the circumstances discharge is not the appropriate penalty. I was asked to exercise discretion pursuant to s. 48(17) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, and to substitute a suspension without pay, from the termination to the date of rein-statement, in place of the discharge. Counsel observed that this would equate with an unpaid suspension for a period in excess of two (2) years. I was asked to consider the grievor's personal circumstances and to balance his rehabilitative potential against the Employer's interests. Counsel for the Union reviewed the following authorities in closing argument: Re Ontario (Liquor Control Board) and O.L.B.E. U. (Reed) (1992), GSB No. 1165/91 (Watters); Re Ontario (Liquor Control Board) and O.L.B.E.U. (Creighton) (1992), GSB No. 1908/89 (Keller); Re Ontario (Ministry of Transportation) and O.P.S.E. U. (Menzies) (1991), GSB No. 751/91 (Waisglass); Re Ontario (Liquor Control Board) and O.L.B.E. U. (Campanaro) (1995), GSB No. 2232/93 (Watters) [summarized 40 C.L.A.S. 390]; Re Canadian Broadcasting Corp. and C. U.P.E. (1979), 23 L.A.C. (2d) 227 (Arthurs). It was counsel's submission that a reading of these cases suggests arbitrators have recognized that termination is not the automatic penalty which must result from an act of theft.

Counsel next reviewed, in general terms, the nature of the grievor's personal circumstances at the time of the theft. In this regard, she focused on the following: (i) the grievor's marriage had broken down causing him to become depressed and creating a negative effect on his relationship with his three (3) children; (ii) the grievor was gambling excessively and compulsively; (iii) the grievor was short of money due, in part, to his gambling losses; and (iv) the grievor stole from his Employer to obtain funds with which to gamble. Counsel submitted that given these circumstances, the grievor was "not exercising sound judgment at the time".

Counsel for the Union next addressed the mitigating factors present in this case. Her argument on this aspect of the case may be summarized, as follows:

(i) the grievor made a frank acknowledgement of wrongdoing at this hearing and at his criminal trial; (ii) the grievor is contrite and remorseful; (iii) the grievor is in the process of making restitution to the Employer by way of affordable monthly installments; (iv) the grievor has already paid a serious price for his actions given that he was charged criminally and convicted of the offence of theft;

(v) the grievor's misconduct was attributable to his family and emotional problems but most of all to his gambling problem. Counsel submitted it is clear from the evidence of both the grievor and his sister that the former had a gambling problem at the time material to this dispute. She referenced the progres­sion in the grievor's gambling from the mid-1980s to January 2002. What started as a social event with his in-laws at the racetrack progressed to the level of excessive and compulsive gambling following the opening of the Woodbine Casino in or around 1993. Thereafter, on her view of the evidence, the grievor gambled five (5) to six (6) nights each week and was compelled to borrow from family and friends to support his habit. Counsel noted that the grievor disclosed his problem to his family in mid-2002. She suggested that he is a "closed and private person" and only told his immediate family when pressed and at a time when the consequences of gambling had reached "disastrous proportions". Counsel submitted that this, together with the fact he was ashamed, explains why he did not inform his doctor of the problem prior to January 2004. I was urged to find that there is "a ring of truth" to the grievor's evi­dence about his gambling; (vi) the grievor has taken steps towards his rehabilitation. Counsel noted that the grievor attends Gamblers Anonymous meetings and continues to receive counselling from Dr. Huang. Counsel conceded that the grievor's admission of a gambling problem in January 2004 was "late in the day". She referenced the grievor's explanation that he was in denial prior to that time and was not prepared to admit to this weakness. On her view, this insight on the part of the grievor reflects the fact that he has

"a chance at recovery". Counsel also noted that the grievor's late admission affected the amount of rehabilitation he could obtain. She stated that further treatment or counselling could be included as a term of any reinstatement; (vii) counsel argued that the lack of medical evidence is under­standable given that doctors refer people with gambling problems to Gamblers Anonymous, and not vice versa. In any event, she submitted that medical evidence is not a precondi­tion to reinstatement. Again, she suggested that any perceived deficiency could be dealt with by way of a condition the grievor complete a program of rehabilitation through an accredited counselling facility; (viii) the grievor is a person who exercised bad judgment, rather than being a hardened criminal; (ix) the grievor is a long-service employee having worked for the LCBO for seventeen (17) years. Counsel stressed that he was a good employee as reflected in his performance appraisals and the commendation from a customer. She further noted that, apart from this incident, the grievor has a clear disciplinary record; (x) counsel asked me to consider the economic impact of dis­charge in view of the grievor's personal situation. She referenced the fact he supports three (3) children, one (1) of whom resides with him, and that his post-termination income is less than before. She observed that the grievor now has less time to spend with the child residing with him as he must work at two (2) jobs to support himself and his family. Counsel added that the grievor is not particularly qualified for another trade or career; (xi) lastly, counsel argued that the grievor is unlikely to engage in similar conduct, if reinstated. From her perspective, the grievor has learned his lesson and is no longer gambling. Additionally, he now understands and appreciates the effect that his compul­sive behaviour has had on his life. In the final analysis, I was urged to focus on the grievor's rehabilitative potential rather than to adopt a punitive approach. It was the position of the Union that sufficient mitigating factors exist in this case to support the substitution of a lesser penalty. For

all of the above reasons, counsel asked that the grievor be reinstated with the following conditions: (i) he continue to make restitution to the Employer; (ii) he continue to seek assistance from a rehabili­tative program for a period deemed appropriate by this Vice-Chairperson; (iii) any further act of theft would result in the grievor's immediate dismissal without a right to grieve other than to challenge the veracity of the allegations; (iv) the termination would be replaced with a suspension without pay in respect of the time period between the date of termination and reinstatement; and (v) such further and other conditions as deemed just and appropriate. It is apparent from a reading of the awards filed in this pro­ceeding that the Grievance Settlement Board has consistently viewed acts of employee theft as a very serious offence. In Re Ontario (Liquor Control Board) and O.L.B.E. U. (Wells) (1982), GSB No. 2/82 (Verity), the Board stated as follows: Theft or attempted theft in any form from any Employer by an Employee, regardless of the value of the stolen goods, does constitute just cause for the imposition of discipline by the Employer. Dishonesty in any form is completely unacceptable to the Employer-Employee relationship. Theft or attempted theft of the Employer's property by an Employee is a fundamental breach of the trust relationship between the Employer and the Employee. The Liquor Control Board of 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. [At pp. 9-10.]

The expectation that employees of the LCBO will conduct them­selves in an honest and forthright fashion was the subject of further comment in Re Ontario (Liquor Control Board) and O.L.B.E. U. (Blackmore), GSB No. 315A/84 (Draper). The Board there observed: Certainly, the LCBO is especially vulnerable to theft and attempted theft of its property. Its employees are inevitably presented with tempting opportunities for dishonest behavior and there are practical limits to the security measures that can be taken to guard against the misappropriation of money or goods. We do not go so far as to say that employees, by reason merely of their employ­ment by the LCBO, are any more to be considered as occupying positions of trust than are other categories of public servants. We do, nonetheless, recog­nize that the nature of their employment requires that they conform to a high standard of personal conduct. [At p. 5.]

The reasoning expressed in the above two (2) excerpts has been previously accepted and applied by this Vice-Chairperson in both the

Reed and Campanaro awards. In the former decision, the Board started its analysis from "the premise that employee theft is a serious matter as it undermines the element of trust which is fundamental to a sound employer-employee relationship" (p. 9).

The jurisprudence of the Grievance Settlement Board also dis­closes that discharge is considered, prima facie, to be an appropriate disciplinary response to an act of theft on the part of an employee working for the LCBO. In the Hill award, the Board commented as follows on this point: Prima facie, dismissal is the appropriate employer response to theft of its property by an employee. The reason said to underlie this view is that the loss of trust that inevitably follows such an offence, particularly where there has been special reliance on the honesty of the employee, irreparably damages the employment relationship. Suspension and reinstatement is an alternative to be considered only if persuasive mitigating factors are present. [At p. 5.]

This approach was accepted by the panel in Reed. The relevant part of that award reads: It is apparent, from a reading of the awards provided to us, that each case is somewhat unique and that the ultimate result depends on the specific facts and circumstances as found therein. Nevertheless, given 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. [At pp. 9-10.]

In the recent decision in Huvos, the grievor, who was a proba­tionary full-time CSR, voided actual transactions and processed fictitious "return to stock" forms over a two (2) day period on seven (7) separate occasions and, in the process, stole $376.40 from the Employer. The Grievance Settlement Board, in that instance, commented as follows vis-à-vis the status of a CSR: 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 ... His actions were an abuse of trust of his position, the Employer and the public. His actions clearly constituted cause for discharge. [At p. 10, p. 246 L.A.C.]

It is clear that the grievor in this case performed almost identical duties at Store #182. I have no hesitancy in concluding that his theft of product on January 26, 2002 similarly reflected an abuse of trust and that such misconduct provided the Employer with cause to discharge him from. employment. In Huvos, the threshold issue was whether there were compelling mitigating factors such that a penalty other than discharge would be just and reasonable in all of the circumstances. That same issue is now before me in this case. The award in Menzies provides some guidance as to how this issue should be addressed. The relevant excerpt reads:

In our view and in the view of arbitrators generally, on the issue of reinstate­ment after discharge for theft or breach of trust, the critical questions are: Is the theft or breach of trust an aberration? Except for the aberration, except for the unusual and exceptional behaviour in an otherwise unblemished record, is the grievor credible and trustworthy? Does she acknowledge and accept full responsibility for her wrong-doing and for the repair of the damage done by her aberrant behaviour? Can she be reformed or rehabilitated by any discipline less than discharge? What is the appropriate level of the discipline that is required in order to send a sufficiently strong message to all employees on the importance of trust and honesty in the employment relationship? Can the grievor be expected, with a high degree of probability, to respond to corrective discipline and rehabilitate and repair the damage that was done (by the aberra-tion) to the trust that is required in the employment relationship? [At p. 9.]

The award of Arbitrator Arthurs in Re Canadian Broadcasting Corp. also identifies various mitigating factors which have been identified as justifying the substitution of a lesser penalty for dis­charge in cases involving theft or dishonesty. These factors include [p. 230]: 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;

4. the past record of the grievor; 8. the grievor's future prospects for likely good behavior, and

5. the economic impact of discharge in view of the grievor's age, personal circumstances, etc.

Arbitrator Arthurs observed that the above factors "while helpful, are not components of a mathematical equation whose computation will yield an easy solution. Rather, they are but special circum­stances of general considerations which bear upon the employee's future prospects for acceptable behaviour" (p. 230). I note that these factors were assessed by the Vice-Chairperson in Huvos in order to determine whether it was appropriate to substitute a lesser penalty for the discharge. I have carefully reviewed the awards in Huvos, Linton, DeLaurentis, Hill, Creighton, Campanaro and Reed. These cases are relevant for three (3) reasons. First, they all involved disputes between the parties to this proceeding. Second, in each of the cases, the grievor was terminated for theft or dishonest conduct and then requested reinstatement at arbitration on the basis that the mis­conduct was caused by an alcohol, drug or gambling problem, or some combination of the three (3). Lastly, in all of the cases, with the exception of Reed, medical or other expert evidence was tendered by the Union in an effort to: (i) establish the existence of the condition; (ii) establish that such condition contributed to, or caused, the wrongdoing; and (iii) show a positive prognosis for rehabilitation. The need to demonstrate that the condition complained of con­tributed to, or caused, the wrongdoing was addressed in both the Huvos and DeLaurentis awards. In the former, the Vice-Chairperson observed that "[t]he case law establishes that there must be a causal connection between the acts of theft and the grievor's condition at the time" (p. 13) [p. 249 L.A.C.]. In the latter, the panel found that there was an onus on the grievor to demonstrate that his thefts were prompted by his alcoholism, see p. 15. The award in DeLaurentis was applied by the Arbitrator in Re Durham Catholic District School Board, see pp. 4 and 5.

The awards in Re Canada Post Corp., Re British Columbia and Re Livingston Distribution Centres Inc., all relied on by the Employer, speak to a related factor that arbitrators consider when adjudicating cases of this nature. More specifically, they seek to determine whether, notwithstanding the addiction or condition, the employee retained volitional control and whether they continued to

know right from wrong. In Re Canada Post Corp., Arbitrator Shime concluded, as follows:

While his gambling addiction is a disease which contributed to his desperate financial condition, and in turn caused him to engage in theft, I am satisfied that he had sufficient volitional control to make his conduct culpable in the civil sense — his judgement was not sufficiently impaired. While Dr. Lightfoot and Dr. Pohlman suggest impaired judgement, I am satisfied from the evi-dence, that the grievor fully and completely understood what he was doing and the consequences if he was to be caught. While his judgement may have been impaired to the extent that he could not control his impulse to gamble, I am satisfied that he understood that he was stealing and the consequences. His judgement concerning the theft and the consequences was not impaired. I am not prepared to fmd, on all the evidence, that having a gambling addiction entitled the grievor to steal from the mail. [At p. 15.]

Similarly, in Re British Columbia, the Arbitrator found that: The letter of Dr. Shepherd, the psychologist, does not lead me to conclude that the Grievor's addiction led to compulsive behavior that might be said to be involuntary and thus non-culpable. None of the evidence led was of the nature that would lead me to conclude that the Grievor was so addicted to gambling or alcohol that he was compelled to do any particular act, let alone theft. I con­clude that the Grievor's acts were voluntary, deliberate and over a significant period of time. I also find that he knew and understood the consequences of his actions. [At p. 6.]

Lastly in Re Livingston Distribution Centres Inc., the Arbitrator, after assuming that the grievor was an alcoholic, commented as follows: It is perfectly clear that the grievor knew what he was doing, knew that it was wrong, but thought that he could get away with it ... There is no causal link between the grievor's drinking and his scheme to steal and dispose of some cases of cigarettes. [At p. 136.]

The importance of medical or expert evidence in cases of this nature was the subject of comment in Reed. On this point, the award reads: Unfortunately, medical or other expert evidence of an independent nature was not presented to us on the extent of the addiction or the prognosis for recovery. In our view, such evidence should be advanced, if available. While we recog­nize that it may be difficult to precisely define the extent of a person's addiction or their future prognosis, such evidence would likely have been helpful. At the very least, it would have permitted us to compare the grievor's perceptions against those of the treating professionals. [At p. 151

Notwithstanding the absence of such evidence, the grievor in Reed was reinstated to employment, subject to certain conditions. The

panel, in that instance, unanimously decided upon that resolution as it was confident, on the evidence, that the grievor was a person whose personal life and employment could be rehabilitated. I note that the lack of medical or expert evidence was the subject of some adverse comment in Re Grober Inc. and in Re Public General Hospital Society of Chatham. Dr. Huang's report of August 13, 2003, as mentioned, is the only substantive medical report filed in this proceeding. Given its date, I am inclined to think that it was likely prepared for purposes of the upcoming criminal case. The report records that Dr. Huang saw the grievor on a regular basis between January 1994 and November 1997 for problems flowing from a marital breakup. It also indicates that the grievor consulted her in March 2002 for symptoms of depression related to issues with the Employer. I note the grievor's evidence that he saw Dr. Huang on a monthly basis between November 1997 and March 2002. There is clearly no indication in the report of the grievor ever having disclosed to his physician that he was experiencing problems with excessive gambling. As stated earlier in this Award, the grievor testified that he did not tell Dr. Huang about the problem until January 6, 2004, the first day of hearing in this matter. The grievor explained that he did not inform her of the problem as he did not want to admit to this type of weakness and that he was in denial. I find this explanation somewhat difficult to accept. The grievor acknowledged that he confided in Dr. Huang about his marital relationship and his depression, both matters being of a highly personal nature. In the circumstances, I question why he would be reluctant to discuss his gambling. Additionally, I find the assertion that he was in denial until early 2004 to be puzzling in view of the evidence that he abruptly stopped gambling in February 2002 and that he told his family of the gambling problem in mid-2002. I am left wondering why the grievor, if he had a serious problem, waited till January 2004 to inform his doctor about same. The grievor also did not tell his lawyer for the criminal proceedings about the gambling problem. Again, I have some difficulty compre­hending this failure to disclose if gambling was, indeed, the real motivation for the theft. I think it reasonable to assume that the grievor likely knew that this information, if true, would be helpful to

his defence and/or sentencing. This is particularly so as he under­stood that a conviction would result in a criminal record which could adversely affect his custody and access rights. If the grievor had a gambling problem, of the extent described, one would think that in the circumstances he would have communicated that information to his lawyer for purposes of the criminal case. I note, in this regard, that the grievor had a professional relationship with this lawyer going back to the onset of his marital difficulties. In view of this his-tory, I question why he would have been reluctant to divulge the problem to his lawyer, especially given that he was prepared to dis­close his family and emotional problems in the criminal proceedings. For the reasons set out above relating to Dr. Huang, I am disinclined to accept that the failure to disclose the gambling problem in or about September 2003 was because he was then still in denial.

As stated previously, the grievor also failed to tell the Union about a gambling problem until the first day of hearing. This failure spanned a period of almost two (2) years following his discharge. As a consequence, the Employer was also not made aware of the alleged problem over this same period. Failure to disclose the alleged cause for theft was addressed in the Linton award. There, neither the grievor nor anyone on his behalf told the Employer of his explanation of drug addiction until the eve of the hearing at which he asked for reinstatement. The panel deciding that case commented adversely on this failure. On this point, the award reads: While he clearly regrets the impact his addiction and his thefts have had on his own life, the grievor has not expressed remorse for the impact they had on the employer. He did not admit his misconduct to the employer at the earliest opportunity. The alleged mitigating circumstances on which he relied at hear­ing were not communicated to the employer at the earliest opportunity, nor were his efforts to rehabilitate himself. In short, he failed to do what he could have done himself in an attempt to rehabilitate his relationship with the employer, to demonstrate to it why it should trust him again despite his past wrongdoing. None of this bodes well for the restoration of that trust, and it is inconsistent with the claim that the grievor was remorseful. [At p. 17.]

I find it significant that a majority of the panel considered this failure to disclose drug addiction in a timely fashion suggested a potential inability to restore the element of trust necessary for an effective employment relationship.

The grievor, on the evidence, did not seek any assistance for a gambling problem until January 6, 2004. His doctor was first informed of the problem on that date and the grievor started to attend meetings of Gamblers Anonymous shortly thereafter, on the sugges­tion of his counsel. I question why the grievor was so tardy in seeking help if his gambling was as excessive, as claimed. I would have expected him to have sought assistance after his termination and, certainly, after his conviction if he was really concerned about this problem. As noted, the grievor testified that he immediately stopped gambling in February 2002, without any recourse to profes­sional intervention. This fact, if true, raises the distinct possibility that the problem was not as serious as made out.

Dr. Huang was not called as a witness in this case. Further, she did not provide a more current medical report. While the gambling problem was not disclosed to her until January 2004, I think that the doctor might have been able to shed some light on the grievor's prognosis and rehabilitative potential. I also consider it material that no one was called from Gamblers Anonymous to testify about the grievor's involvement in the program, his progress and his prospects for rehabilitation. This case, therefore, is unlike the situ­ation in most of the awards cited by the parties. In those cases, medical experts or counsellors were called upon to support a request for reinstatement. The grievor testified about borrowing money from his friends to support his gambling habit. The grievor stated he told them at the time that he needed the money to gamble. The evidence was that these friends eventually stopped loaning him money because he failed to repay them. One (1) or more of these individuals could have been called as witnesses to support the assertion the grievor was gambling excessively in the period prior to the theft. The failure to call such a witness raises an inference that they might not have been supportive of the grievor's claim. I am not disposed to give much effect to the content of the grievor's letter of February 11, 2002 to Mr. Loukas. On its face, the letter is somewhat vague. However, it was written shortly after the grievor's arrest and I can accept that, in the circumstances, he might have been disinclined to be specific in his description of the incident. I do agree with the Employer's suggestion that the grievor's

response to the. NOID was less than a complete or frank admission of wrongdoing.

It is readily apparent that the grievor was untruthful in his letter of May 6, 2002 to Human Resources Development Canada. By way of example, he referred to an "alleged incident", when in fact he knew it was more than alleged given that he actually committed the theft in issue. He also referenced taking out garbage, when he was fully aware that he actually removed a case of cognac from the Store. The grievor, further, improperly accused the Employer of pro­viding "totally biased information". I accept that these statements in the letter reflect dishonesty and a propensity to bend the truth on the part of the grievor.

A similar situation occurred in Re Livingston Distribution Centres Inc. In that case, the Arbitrator found, inter alia, that the grievor's conduct did not satisfy the standard of rigourous honesty required of an employee in a dispute of this nature. On this point, the award reads:

Perhaps most telling are the grievor's subsequent dealings with the Unemployment Insurance Commission where, the company points out, he also refused to acknowledge any wrongdoing, and lied in order to improve his chances of getting benefits.

The grievor acknowledges that (as with the police) he told the Unemployment Insurance Commission that he had done nothing wrong. He told the UIC that he did not steal anything, and that he did not know how stolen cigarettes came to be in his car. However, in his testimony at the arbitration hearing he admitted he was lying. He conceded: "I make no bones about it. I was trying to bullshit the Unemployment Insurance Commission to get some money".

The grievor says that he was feeling the pinch of unemployment and needed the UI cheque. So he lied to the UIC. It seemed to be the best way to handle his predicament. [At p. 137.]

When the grievor was caught "red-handed", there was no frank admission of misconduct or willingness to take responsibility for his behaviour. On the contrary. The grievor told a series of lies to the police and was not completely forthcoming to the company either. No doubt he was acting upon his lawyer's advice. But he has nevertheless indicated a willingness to bend the truth if it will promote his interests or help him avoid personal responsibility — as in the case of his unemployment insurance claim some weeks later. [At p. 142.]

I am inclined to agree with counsel for the Employer that the grievor's description of his arrangement with Jack is somewhat

suspect. The grievor stated that he had met Jack on about six (6) occasions, yet he did not know his last name. The grievor suggested that Jack may not have known that he worked at Store #182, but within a few minutes of their meeting on January 26, 2002 they con­cluded an arrangement to steal from the Employer. I am left with the impression that Jack may have gone to the Store with a firm pur­pose in mind and that the plan may have been concocted beforehand by the two (2) participants, rather than it just occurring sponta-neously. I am also left questioning the veracity of the grievor's evidence that he never saw Jack again after putting the case of cognac in his trunk. One (1) final factual matter remains relating to restitution. It is apparent that the grievor made no effort to make restitution between February 2002 and the date of his criminal case in September 2003. The grievor testified that he was prepared to make restitution at the sentencing, but that a term of restitution was not included in the pro­bation order. It was his evidence that he spoke to both his lawyer and the Court Office concerning this omission. The fact is, however, that despite this concern, the grievor made no actual effort to repay the Employer following his sentence until the first day of this case. This delay causes me to question how sincere the grievor really was in wanting to make things right with his Employer. In Reed, the grievor alleged that his act of theft stemmed from an addiction to drugs. There was evidence in that case that, between his arrest and a subsequent meeting with his Employer on June 13, 1991, the grievor contacted both the Addiction Research Foundation and Donwood Medical Centre. As there was a substantial waiting list for programs at both facilities, the grievor arranged for a referral to the North Western Institute in Fort Washington, Pennsylvania for a period of rehabilitation. This program was completed well in advance of the hearing. Additionally, the grievor commenced regular attendance at meetings of both Alcoholics Anonymous and Narcotics Anonymous prior to the arbitration. In the present case, Mr. Devlin did not seek any treatment for a gambling problem prior to the first day of hearing. Indeed, he did not divulge the existence of such a problem to the Union, the Employer and his family doctor until that very day. While medical or expert opinion was not presented in Reed, the panel unanimously found that there was a real potential for the grievor's rehabilitation and reinstated him to

employment subject to conditions. On the evidence before me in this case, I am unable to confidently reach the same conclusion. In Creighton, the grievor alleged that his misappropriation of LCBO funds, and his issuance of NSF cheques, was related to gambling and alcohol problems. In that instance, a substantial amount of expert evidence was presented through a certified addic­tions counsellor and a psychologist in respect of the grievor's problems. The former concluded that the grievor's prognosis was good, while the latter viewed it as being relatively good. On the basis of this expert evidence, the grievor was reinstated conditionally to a warehouse position. As stated earlier, Creighton is distinguishable from this case as, here, the grievor did not tender any medical or expert evidence on the relevant issues. The award in Campanaro is distinguishable on the same basis. In that matter, three (3) reports were filed from a psychotherapist. These reports ultimately persuaded the panel that the grievor had recovered from his prior addictions and emotional problems. On this basis, the panel unani­mously determined that he was unlikely to reoffend and reinstated him to his former position. The factual situation in Menzies was different from that present in this case. In Menzies, the grievor confessed to the thefts and brought evidence of same to her supervisor before she was actually accused of improper conduct. In that instance, the grievor had been suffering from extreme stress as a result of a combination of dis­tressing events in her family life. An intern therapist was called as a witness to give evidence on that grievor's behalf. The witness assessed the grievor's prospects as very likely to be successful. Ultimately, a majority of the panel concluded that the case involved "a set of circumstances of a unique type, not likely to occur again". The grievor was reinstated on the condition she be examined, diag­nosed and treated by a licensed specialist in emotional and behavioural disorders. To repeat, the grievor in the present dispute did not adduce any supporting evidence, through a physician or other expert, relating to the gambling problem and the extent of any recovery from same. The award in Re Canadian Broadcasting Corp. lists nine (9) mitigating factors which arbitrators have considered when called upon to substitute a lesser penalty than discharge in cases

involving theft or dishonesty. After assessing these factors against the circumstances of this case, I conclude as follows:

i) the grievor was not under a bona fide confusion or mistake as to whether he was entitled to remove the case of cognac from Store #182 on January 26, 2002; ii) the grievor was not unable, due to a gambling problem, to appreciate the wrongfulness of the theft;

iii) on my view of the evidence, the act was not impulsive or non-premeditated. It is clear that the grievor and Jack spoke about the arrangement for a period of time, albeit a relatively short period, and that it was thereafter executed in a deliberate fashion. I am satisfied that the grievor made a conscious deci­sion to steal from his Employer in order to secure funds with which to gamble later that day. In my judgment, he possessed volitional control and acted with a specific purpose in mind; iv) the theft of a case of Remy Martin VSOP Cognac, having a value of $904.20, is not a trivial matter when considered objectively;

v) I am not satisfied that the grievor made a frank and unequivocal acknowledgement of misconduct immediately following thetheft. I find, however, that he did so at the hearing of his grievance; vi) I have not been persuaded that the grievor's act of theft was premised on a sympathetic or personal motive;

vii) I accept that the grievor's past record is a factor standing to his credit. He had no prior discipline on record over a lengthy period of employment and had received satisfactory perfor­mance appraisals over the course of several years; viii) I am unable to confidently assess the grievor's future prospects for likely good behaviour. As repeated throughout this Award, no medical or expert evidence was presented to support a con­clusion that the grievor has been rehabilitated, or at least is well on his way to being rehabilitated, or that he could be returned to the workplace with minimal risk to the Employer. At best, I am left with the evidence of the grievor, much of it self-serving, on this question. On balance, this evidence alone has not persuaded me that reinstatement is justified or appropriate in the circumstances;

ix) Lastly, I accept that the loss of his job at the LCBO had a dev- astating effect on the grievor's financial position. I do note, however, that he has now secured two (2) other jobs, albeit they produce lesser total income. I am unconvinced that the grievor's age precludes a switch to a different line of work or career.

There is some question, in my mind, as to whether the grievor has established that he suffered from a gambling problem at or around the time of the theft. His failure to disclose the problem to anyone, other than his sister, until the opening day of this proceeding, raises some doubt as to the existence of the problem. This doubt is rein­forced by his failure to obtain assistance for a gambling problem until after January 6, 2004 and by the lack of any medical or expert evidence to substantiate its existence. I am, nevertheless, prepared to assume that he did experience such a problem at the time material to this case.

Clearly, there is absolutely no independent evidence to establish that gambling contributed to, or caused, the theft on January 26, 2002. Similarly, and equally as important, there is no medical or expert evidence to suggest a positive prognosis for rehabilitation. Rather, I am simply left with the grievor's own evidence on these issues. After due consideration, I find this evidence to be insufficient to justify resort to the discretion provided for by s. 48(17) of the Labour Relations Act, 1995. I have not been convinced that I can rely on the grievor's evidence, with any degree of confidence, on these material issues. As suggested above, his evidence, in many respects, leads to more questions than answers. For the record, I do find that Ms. Devlin, the grievor's sister, was a credible witness. Her evidence, however, is not all that helpful in respect of the core issues arising in this case. Ultimately, I am unable to conclude that sufficient mitigating factors have been established, through credible and trustworthy evidence, to merit the reinstatement sought. The evidence presented in support of the grievor's position does not meet the tests enunci­ated in Menzies and in Re Canadian Broadcasting Corp. In the language of the former award, I am not satisfied that the grievor can be expected, with a high degree of probability, to respond to correc­tive discipline and rehabilitate and repair the damage that was done

to the trust that is required in the employment relationship. To use the language of the latter award, I think the evidence presented falls far short of establishing that the grievor will exhibit acceptable behaviour in future if reinstated. There is no doubt that the grievor experienced significant adverse consequences as a result of his decision to engage in theft on January 26, 2002. He lost his job and suffered financially. He was charged criminally and was subsequently convicted and sentenced. Additionally, the incident and its aftermath led to further difficulties within his family. These consequences, while extremely unfortunate, were entirely avoidable. The message from this case to employees inclined to steal from the LCBO is that a great deal can be lost as a result of dishonest and illegal conduct. I am indebted to both counsel for the very able manner in which they presented their respective cases. For all of the above reasons, the grievance is dismissed.