GSB# 2009-3092

UNION# 2009-0376-0042

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Conlin)

Union

• and -

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

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Richard Blair Ryder Wright Blair & Holmes, LLP Barristers & Solicitors

FOR THE EMPLOYER

Adrienne Couto Liquor Control Board of Ontario Counsel

HEARING

October 22, 2012 and February 25, 2013.

Decision

1This decision determines the grievance dated December 15, 2009 filed by Ms. Patricia Conlin (“the grievor”) alleging that she was discharged without just cause. The parties filed an agreed statement of fact, and agreed that it may be supplemented by viva voce and documentary evidence. The agreed statement of facts is as follows:

I. The Grievor

1. The Grievor commenced employment as a casual Customer Service Representative (“CSR”) in the LCBO’s retail store system in September 20, 1988 and was promoted to a permanent full time (“PFT”) CSR effective December 10, 2000.

2. At all material times, the Grievor was a bargaining unit employee represented by OPSEU or its predecessor OBLEU and the terms and conditions of her employment were governed by a collective agreement between the LCBO and either OPSEU or, prior to the merger between OPSEU and OBLEU, the OBLEU. A copy of the collective agreement for the term April 1, 2009 to March 31, 2013 is attached hereto as Exhibit 1 (the “Collective Agreement”).

3. Effective September 10, 2007, the Grievor was assigned to Store 536, which is located at 2943 Major Mackenzie Drive, Maple, Ontario (“Store 536”).

4. From October to November, 2009, the Store Manager of Store 536 was Robert Saliba, the Assistant Store Manager of Store 536 was Dianne Smith, and the District Manager for Store 536 was Barb Chapple. The Grievor reported to Ms. Smith and Mr. Saliba during this period.

5. As a PFT CSR, the Grievor was scheduled to work forty (40) regular hours per week, from Monday to Saturday. She was required to perform cash and perform stock duties. She also acted as “shift leader” on some shifts, which required her to be the person in control of the store, and which required her to hold keys to the store, keys to the cash register, balance deposits and place deposits into the safe, and assign work to and supervise other employees during that shift.

B. The Grievor’s Conduct and Termination

6. On October 25, 2009, Ms. Smith received an anonymous call, advising that the Grievor was letting certain individuals take product without paying for them, and, specifically, that the Grievor was only ringing in a couple of items and allowing the individuals to leave with more products than what was paid for, and, further, that “some deals are done in the store and other times [the Grievor] meets them outside.”

7. Following the anonymous call, the LCBO’s Resource Protection department placed a covert camera system above the Grievor’s assigned cash register (cash register #5) to monitor the Grievor’s conduct while on cash. The camera system recorded, onto videotape, the actions of the Grievor while working on cash 5 on October 31, 2009 and November 2, 2009.

8. The LCBO viewed the videotapes from the covert surveillance, as well as the videotapes from the in-store camera system. The videotapes revealed a number of incidents between October 27, 2009 and November 21, 2009, as set out below and as demonstrated in the documentation attached hereto as Exhibit 2.

9. Between October 27, 2009 and November 21, 2009, the Grievor engaged in the following conduct, which was captured on the surveillance:

a) On Tuesday, October 27, 2009, at approximately 1:45 p.m., three customers approached the Grievor’s cash desk and presented a number of products consisting of high end cognacs and wine. The Grievor proceeded to press keys on the cash register, picked up a box from the floor and placed it on the counter. The Grievor then placed the products into the box and closed it. The Grievor accepted payment from one of the customers. The customer left the store with the closed box of product and the other two customers left the store with products in their hands. However, the Grievor only rang in one bottle of Wincarnis Aperif Wine worth $10.70. The retail value of the product not rung in was approximately $482.85.

b) On Saturday, October 31, 2009, at approximately, 10:17 a.m., the Grievor placed a closed box on her cash counter. A customer then presented a cart containing cases of product. The Grievor examined the contents of the boxes then returned to her cash terminal. The customer pushed the cart through the checkout lane and slid the closed box down the cash counter. The Grievor proceeded to scan one bottle taken from the front display by the customer. The Grievor then accepted a card and a bill from the customer, pressed keys on the cash register, accepted payment from the customer and the cash drawer opened. The Grievor then gave the customer a bill and coin as change. The customer placed the box from the counter on top of the cart and exited the store with all the boxes of product in the cart. However, the Grievor only rang in one bottle of Polar Ice Vodka worth $6.95, redeeming the balance of a gift card and cash as payment for the one bottle. The retail value of the product not rung in was approximately $1,020.45.

c) On Saturday, October 31, 2009 at approximately 11:28 a.m. the Grievor placed two 750 ml. bottles on the front of her cash counter. At approximately 11:43 a.m., the Grievor then placed a box in front of the two 750 ml. bottles on the front of the counter. At approximately 11:56 a.m. the Grievor placed two bottles into the box and then picked up the two 750 ml. bottles from the counter, placing them into the box as well. The Grievor then moved to the cash terminal as a customer picked up the box. The Grievor appeared to press keys on the register as the customer left the store with the box containing the four bottles. The cash drawer never opened, no receipt was produced or given to the customer, the four bottles were not rung in and no transaction was entered into the cash terminal. The retail value of the product not rung in was approximately $241.00

d) On Monday, November 2, 2009, at approximately 11:02 a.m. the Grievor placed a case on the front of the cash counter. A customer then presented a cart containing cases of product. The customer picked up the case from the counter and placed it on the cart with the other cases. The Grievor then placed cooler product into a bag and handed it to the customer. The customer exited the store with the cart full of products. No products were rung in during this transaction, the cash drawer never opened and no receipt was produced or given to the customer. The retail value of the product not rung in was approximately $511.55.

e) On Saturday, November 7, 2009, at approximately 3:35 p.m. a customer presented a six-pack of beer in a cart to the Grievor and moved a case of products down the counter. The Grievor proceeded to press keys on the cash register and appeared to accept payment from the customer. The customer placed the case of products into the cart and placed the six-pack on top of the case. The customer then exited the store with the case of products and the six-pack of beer. However, the Grievor only rung in the six pack of beer worth $13.50. The retail value of the product not rung in was approximately $284.80

f) On Saturday, November 14, 2009, at approximately 1:34 p.m. a customer entered the store and met the Grievor on the retail sales floor. At approximately 1:35 p.m. the Grievor took an empty case and began placing products into the case. The Grievor then carried the case to the cash counter, and placed the case on the counter as the customer approached with a four-pack of cooler product. The Grievor proceeded to press keys on the cash register. The customer then picked up the case of products and the cooler product, exiting the store. However, the Grievor only rang in the generic number for one bottle of domestic beer worth approximately $2.00.

g) On Saturday, November 21, 2009, at approximately 10:15 a.m., a customer entered the store, took a cart and met with the Grievor at the cash checkout area. The Grievor provided the customer with three empty cases that were placed in the cart. The customer proceeded to select products throughout the store, placing them in the cases with the Grievor’s assistance. The customer attended at the cash checkout with two carts full of products. The Grievor proceeded to press keys on the cash register and appeared to accept payment from the customer. The customer departed the store with one cart full of cases of product. The Grievor subsequently exited the store with the second cart of products. However, only one four-pack of cooler product worth $9.95 was rung in and payment was processed on a debit card. The retail value of the product not rung in was approximately $1598.20.

10. The total amount of the product involved in respect of the conduct noted in paragraph 9 above was approximately $4,138.

11. In respect of the above-noted transactions, the Grievor was the shift leader on three (3) of the six (6) dates in question, specifically: October 31, 2009, November 2, 2009 and November 21, 2009.

12. The Grievor was issued a notice of intended discipline (“NOID”) dated December 9, 2009, attached hereto as Exhibit 3, suspending her from duty with pay pending an investigation into the conduct outlined in paragraph 9, above. In the NOID the Grievor was requested to provide a written statement, explaining her conduct, and was further advised that a meeting was scheduled for December 15, 2009, to discuss her conduct.

13. The LCBO did not receive a written statement from the Grievor, as requested in the NOID.

14. The Grievor attended for the meeting of December 15, 2009; however, the Grievor’s union representative subsequently advised the LCBO that the meeting would not be proceeding, pending the disposition of criminal charges related to the allegations.

15. The Grievor’s employment was terminated by correspondence dated December 18, 2009, attached hereto as Exhibit 4.

16. The Grievor filed a grievance, at Stage 3, dated December 15, 2009, attached hereto as Exhibit 5.

C. The Criminal Charges and The Grievor’s Conviction

17. The York Regional Police charged the Grievor with theft under $5,000 in respect of the conduct noted in paragraph 9, above.

18. On February 28, 2011, the Grievor pled guilty to theft under $5,000. The Grievor was sentenced to 12 months of probation. Restitution was paid to the LCBO in the amount of $4,138.00.

19. Section 48.1(1) of the Crown Employees Collective Bargaining Act states:

Criminal conviction or discharge considered conclusive evidence

48.1(1) 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. 2001, c. 7, s. 18.

2The employer did not adduce any viva voce evidence. The union’s only witness was the grievor. At the union’s request it is recorded that the grievor was tendering her testimony under the protection of s. 5 of the Canada Evidence Act, s. 19 of the Ontario Evidence Act, and the Canadian Charter of Rights and Freedoms.

EVIDENCE

3The grievor confirmed that she joined the employer’s workforce in 1988 as a part-time Customer Service representative (“CSR”) and attained full-time status in 2000. She testified that she was in a common law relationship from a young age and gave birth to a daughter in 1986 at age 23. In 2004 her common law husband was diagnosed with prostate cancer and passed away on May 31, 2005. She testified that on April 7, 2005 she suffered a back injury in a car accident and was off work until July 2006. Also, in December 2005, her brother who was very close to her passed away at age 47 following a heart attack.

4The grievor testified that as a result of these traumatic events she became very depressed and began to consume alcohol. The physician who treated her following her car accident left in the fall of 2005, and she came under the care of Dr. Roopnarian. She testified that she still continues to take anti-depression medication, as well as pain medication for her back injury. In November 2009 she suffered a rotator cuff injury at work and underwent surgery. She did not return to work from that absence since she was terminated effective December 18, 2009. The grievor testified that she drank a lot and drank “morning till night” including on work days. Asked how the thefts from the LCBO started, the grievor testified that at some point in 2009 she ran into a female friend, who she had not seen since 1988. The friend at the time was having problems in her own life and was also drinking heavily. She and the friend came up with a scheme to steal liquor from the LCBO, and agreed that the friend would take half of the stolen liquor and put the other half in the grievor’s car. Asked whether the friend was the only person who was involved in the grievor’s thefts, she replied that there were others. However, she could not recall how many others were involved. Nor did she know their names. She testified that the arrangement with these other accomplices was the same as with her friend. That is, to split the stolen liquor 50/50. Asked “who approached who” with the suggestion to steal liquor, she replied that “it happened both ways”. Asked to describe how exactly the scheme worked, she said “They’d put whatever they want in a buggy and bring it to me. I’d ring in one and they get the rest free and they would put half in my car. I don’t know what they did with their half”. She testified that the thefts started in 2009, but she could not give an exact day.

5The grievor testified that presently she did not consume any alcohol at all. She stopped drinking in 2010 because she “realized how it destroyed my life and I lost everything”. She testified that she did not tell Dr. Roopnarian about her drinking habit because the doctor did not want to know anything about her past, but only wanted to look at the future. However, she did tell Ms. Lechowicz, a social worker with Dr. Roopnarian’s health team, who she had been referred to for counselling. The grievor testified that she still continued to see the social worker once a month. She no longer associated with her female friend or any of her other accomplices. She testified that since her termination in December 2009 she had not obtained other employment, and her only income was from a widow’s pension and ODSP benefits, for a total of approximately $1000 a month. She lives in low income government housing. Asked whether she had looked for employment since her termination, she replied that she had not, “because I have a criminal record. I like to go to school and get a job as a personal support worker.”

6Union counsel asked the grievor to reflect on what she had done. She replied, “I did something really stupid. I wasn’t thinking straight. I was not in a stable frame of mind. I attribute it to my depression. I didn’t care about anything. Drinking helped me sleep some nights. Then I realized what I was doing. I haven’t had a drink for two years. I am trying to put my life back together.” Asked what she had to say to the employer, she said, “I am very sorry. It was stupid. I totally regret it. I can’t believe what I did”. Union counsel asked the grievor how she would be able to handle it with all of the alcohol in the store, if she is reinstated. She replied, “I don’t think it will be a problem. Now I have realized. It won’t be an issue to be surrounded by alcohol. No. I won’t go back to drinking”.

7Under cross-examination, the grievor agreed that when she committed the thefts in October-November 2009, she knew that it was wrong and that she could be discharged if caught. She testified that her drinking started in 2005 soon after the death of her husband. Asked how much she drank at that time, she estimated 9 to 15 drinks a day. She testified that she did not steal liquor from the LCBO at the time. At the time of the thefts she was still consuming 9-15 drinks a day. The grievor testified that she drank daily, including on work days. At work she drank in the lunch room when no one else was present. To her knowledge no one had seen her drink at work. She also testified that she had not told anyone at the LCBO about her drinking. Nor was she disciplined or counselled for being intoxicated or unfit at work, or for lateness. She agreed that CSR’s are trained to identify individuals who are intoxicated, and that no one at work had raised any concern that she had been drinking at work. She confirmed that her performance evaluations were generally good with a rating of 3.

8The grievor testified that the amount she consumed at work varied day to day. She agreed that on the six days she was caught stealing, she did her full shift and performed all duties, and that no one had raised a concern that she was unfit to work. She agreed that on three of the six days she was the shift leader, and therefore in charge of the store. She also agreed that on all six days she drove approximately 25 minutes each way to and from work between Bradford to Maple. Counsel suggested that since she was able to drive and perform her work duties without any issue during the six days in question, whatever drinking she did must not have had much effect on her. The grievor replied that she did not know what effect it had, but she drank in order to forget the deaths of her husband and her brother. She added that even after 7 years, she has not still got over the death of her husband.

9Filed in evidence is a letter dated September 19, 2012 from the social worker, Ms. Lechowicz to union counsel. It reads:

This letter is to provide information regarding my involvement in the counselling process with Ms. Conlin, as per your request.

Ms. Conlin was referred to myself by her family physician, Dr. Roopnarian within our family health team practice. The nature of this referral was to help Ms. Conlin manage the stress in her life and her depression. She was initially seen on May 4th 2010 for an assessment appointment. During this assessment, Ms. Conlin reported that she has abused alcohol over the past year in response to the death/loss of her partner. She reported consuming 9 drinks per day from July-December 2009, which she said was a high level of consumption for her and she was concerned about this. She reported that after she was charged, she stopped drinking alcohol.

Ms. Conlin has attended about 8 counselling sessions to date to obtain support in coping with the stressors in her life. She has not reported any alcohol use since the above named charge.

Asked if she got any medical or professional help in order to stop drinking she replied that apart from the social worker, she sought no other help. Counsel pointed out that she could not have received any help from the social worker to stop drinking because she first saw her in May 2010 and she had testified that she had quit drinking in January 2010. The grievor agreed that she quit on her own with no help from anyone.

10Employer counsel pointed out to the grievor that the deaths were in 2005, that her diagnosis of depression was in 2007, and that her thefts therefore had started four years after the deaths and two years after her diagnosis of depression, and asked what had changed since those events for her to start stealing liquor in the summer of 2009. The grievor replied that nothing had changed. Referring to the clinical notes filed in evidence, counsel suggested that on November 29, 2009 she was seen by Dr. Roopnarian and that there is no indication in the clinical notes that the grievor had raised any issue with her depression or mental state. The grievor agreed and explained that that visit was about the shoulder injury she had suffered at work.

11Referring again to the clinical notes, counsel suggested that the grievor first mentioned the grief about the death of her husband and brother to Dr. Roopnarian, on January 4, 2010, after she had been discharged. The grievor replied that when she first came under Dr. Roopnarian’s care she had tried to report the effect those deaths had on her, but the doctor did not want to hear about the past and “wanted to go forward”. The grievor agreed that in the period October-November 2009, she had not reported any issue of depression to the employer, and did not access the employee assistance program, although she was aware of its availability. Nor did she seek any accommodation for her depression.

12The grievor reiterated that apart from the one – her female friend – she did not know who her other accomplices were, except that they were regular customers at the store. Asked how, if they were strangers, they would know her car to put her half of the stolen liquor, she replied that she told them, and that she kept her car unlocked. Counsel reviewed the grievor’s testimony in chief that on some occasions she had been approached by customers with the suggestion of stealing liquor, and asked how that happened. She replied, “They’d see me on the floor, and they’d ask me “is today a good day” and I’d say yes or no.” Counsel suggested that for that to happen, she must have talked about it with them previously. She disagreed. Counsel asked, “Then how would they know to come to you, why wouldn’t they go to someone else?” The grievor replied, “I have no idea”. She testified that prior to 2009 she had not been so approached by customers, and that it happened only in 2009. Counsel put to the grievor that she knew those people and had made prior arrangements to steal. The grievor replied, “No. I didn’t even know their names, where they lived or what they drove. I only knew that they came into the store regularly”. Counsel asked whether her testimony is that complete strangers came to her suggesting that she join with them to steal liquor. She replied, “I guess so. Yes”. She testified that the only one she had made prior arrangements was with her friend. She testified that apart from the half share of the liquor stolen, she derived no other benefit from any of the thefts. She agreed that normally, if a customer approaches an employee with a suggestion to steal liquor together, she would expect that the employee would report the customer to the manager. She was not aware of any such reports being made.

13The grievor agreed that on the days when thefts occurred while she was shift leader, the store manager was not around, and that she “probably” planned it that way. Asked how she would know that an accomplice actually put one half of the stolen liquor in her car, given her evidence that she did know what the product stolen was, the grievor replied that she “just trusted that they would put half in my car”.

14Referring to the agreed facts, counsel pointed out that at 10:17 a.m. on October 31, 2009, $1,020.45 worth of liquor was stolen and that her share would have been worth over $500, and that just over an hour later a further theft of liquor worth $241.00 took place. Counsel asked, since she had already acquired a substantial amount of alcohol sufficient to last for several days even at 5-9 drinks per day, why an hour later she wanted two more bottles. The grievor replied, “I don’t know”. Counsel pointed out that after getting approximately $750 worth of alcohol on October 31st, just two days later on November 2nd there was another theft of liquor worth over $500. The grievor replied that she probably ran out by then. The grievor denied that she sold any of the stolen liquor. She agreed that she could have afforded to buy the alcohol she needed but chose not to. Asked why she did not simply take the product herself without involving others, the grievor replied, “I guess I needed help to get it out the store”, and it made it less likely that the theft would be detected.

15Asked if her position was that she was an alcoholic, the grievor said it was. She agreed that it was only her own assessment, that no one had ever diagnosed her to be an alcoholic and that she had not even reported her drinking to her physician. She was aware that programs such as Alcoholics Anonymous are available for rehabilitation from alcoholism, but she decided to quit drinking on her own and did not feel she needed any help. She agreed that alcoholism could be a life-long condition for some, but was confident that she could get over it on her own. When counsel suggested that she could start drinking again, she replied, “I won’t. I saw what it did to my life. So why would I start again.” Asked, “Today, are you doing anything about your alcoholism?” She replied, “No. I live a different life now”. Asked how her depression was at present, she stated that she is trying to carry on, that she has to deal with it daily, but that it was better. When counsel pointed out that in a letter dated October 12, 2012 to union counsel, Dr. Roopnarian has stated “She has responded much better to her current treatment and is in remission”, the grievor disagreed with the doctor’s statement, and stated that she could not understand why the doctor would say that when she was still continuing to take anti-depressants. She understood that depression was a life-long condition, but stated that her depression would not lead her to drink or steal again.

16The grievor testified that she was still struggling with and grieving the loss of her husband and talked about that “all the time” on her visits with the social worker. Counsel reviewed clinical notes prepared by the social worker from each of her sessions with the grievor and pointed out that the notes do not reflect that the loss of her husband was discussed at any of the sessions, and that the discussion was mostly around stress as a result of her conviction, the loss of her job, her financial problems etc. The grievor stated that she could not explain why the social worker had not made any notes on the discussions about her grief. Counsel asked, given her testimony that she still had not got over the loss of her husband, whether that grief would affect her in the future. She replied, “I cannot predict that. I hope life will have meaning, that I will have a job to go to so I get my life back on track”.

SUBMISSIONS

17Employer counsel pointed out that the fact that the grievor committed theft of LCBO property worth over $4000 is not in dispute. She submitted that it is now well established that, while arbitrators do not accept that termination is justified automatically in all cases of theft, it is regarded as prima facie justified. There is a substantial onus on the union to establish that compelling mitigatory circumstances exist that would cause an arbitrator to substitute a lesser penalty. Counsel cited the following excerpt from Re Carmichael, 2009-1999 (Johnston) at p. 37, as representing this Board’s approach to theft by LCBO employees, where the employee relies on some form of addiction or mental impairment as a mitigatory defense.

In Teamsters Local 419 v. Livingston Distribution Centres Inc. (Hurd Grievance) (1966) 1996 CanLII 20233 (ON LA), 58 L.A.C. (4th) 129 (MacDowell), Arbitrator Rick MacDowell observed that although contemporary arbitral opinion does not support discharge in all theft cases, it does support the proposition that theft is a serious form of employee misconduct that will often warrant discharge unless there are strong mitigating circumstances. He stated that the arbitration cases make it perfectly clear that an employee who steals from his employer puts his job on the line and if he is caught will probably be discharged unless he can demonstrate compelling countervailing considerations. I agree with these conclusion. Arbitrator MacDowell then referred to the following list of mitigating factors set out in Re Canada Post Corporation (1983) 1988 CanLII 9301 (CA LA), 11 L.A.C. (3d) 368 (Arthurs):

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 acts;

3. The impulsive or non-premeditated nature of the acts;

4. The relatively trivial nature of the harm done;

5. The frank acknowledgment 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.

I agree that the factors, if present in a particular case, are factors that would mitigate against the neatly of discharge.

18In addition to the decision in Re Carmichael, counsel relied upon the following decisions of this Board, all of which were between these same parties. Re Hill, 0054/86 (Draper); Re Linton 1429/92 (Gray); Re DeLaurentis, 1016/93 (Marszewski); Re Huvos, (2003) 2003 CanLII 89595 (ON GSB), 122 L.A.C. (4th) 238 (Abramsky); Re Devlin, (2004), 128 (L.A.C. (4th) 129 (Watters). In addition, reference was made to Re Canada Safeway Ltd., (1999) 1999 CanLII 35903 (SK LA), 82 L.A.C. (4th) 1 (Ish); Re City of Hamilton, (2006), 155 L.A.C. (4th) 337 (Knopf); Re Molson Breweries (Toronto), (2011) O.L.A.A. No. 637 (Rayner); Re Canada Post Corporation, (1998) C.L.A.D. No. 811 (Shime).

19Counsel highlighted for the Board a number of principles that emerge from the jurisprudence. She pointed out that theft generally has been regarded as a very serious offence. She submitted that this Board has recognized that it is even more so in the context of the particular operations carried out by the LCBO. In the instant case the grievor had been videotaped committing seven thefts on six separate dates in October-November 2009, but had admitted that she had started stealing months earlier in the summer of 2009. On three of the six dates, she was in charge of the store as the shift leader. The evidence indicates that the bulk of the liquor was stolen on those three days. In other words, the grievor used her position of authority to steal.

20Counsel submitted that the grievor and the union had not met its onus of establishing compelling mitigatory factors that should cause the Board to intervene. Counsel submitted that there is no evidence before the Board to establish that the grievor was an alcoholic, except for her own self-diagnosis. There was no diagnosis of an addiction, nor any independent evidence from anyone that she was abusing alcohol. Even if the Board accepts the grievor’s evidence that she was consuming 9-15 drinks, there is no evidence that the alcohol had any effect on the grievor’s ability to function normally. She was able to drive to and from work, performed all assigned work duties and had no attendance or punctuality issues. Moreover, as soon as she was charged criminally, by her own account, she was able to completely quit drinking on her own with no assistance. Counsel urged the Board to conclude, as the Board did in Re Devlin, supra, that the grievor did not have a serious drinking problem as would affect her ability to behave rationally. The Board was urged to conclude that alcoholism or addiction has not been established.

21Counsel acknowledged that the evidence indicates that in September 2007 the grievor was diagnosed with depression, following the deaths of her husband and brother in 2005. However, counsel submitted that there is no evidence to suggest that during October-November 2009 when the thefts were committed, her depression was any worse. In that period the grievor had visits to her physician and there is nothing in the doctor’s clinical notes that the grievor even talked about her grief about the loss of her husband or brother. The doctor has noted that in January 2010, after the grievor had been criminally charged, there was a relapse of her depression. There is no indication that there was a relapse or aggravation of her depression at the time of the thefts.

22Counsel submitted that even if the Board concludes that at the relevant time the grievor had an addiction to alcohol, there is no medical or other expert evidence that indicates that there was a connection between her alcoholism and the thefts. Even the grievor’s evidence does not suggest that on the days in question her judgement was impaired or that her addiction compelled her to steal the liquor. Counsel pointed out that while the grievor had expressed concern to the social worker that she was drinking excessively, - she told her 9 drinks a day - she did not indicate to her that the drinking was affecting her behaviour. Counsel noted that the grievor’s testimony was that her level of consumption was constant throughout. She did not suggest that during October-November 2009 she was drinking more. Why did her drinking then suddenly cause her to steal in October-November 2009, asked counsel.

23Counsel argued that while there is evidence that the grievor suffered from depression, there is no evidence of any link between her depression and the thefts. Her evidence is that the depression was triggered by the grief following the death of the grievor’s husband and brother in 2005. There is no evidence that her state of depression was worse in 2009 than previously. In fact, it is reasonable to expect that the grief and the resulting depression would be at its worse in the period proximate to the time of the deaths. It makes no sense, and there is no evidence, that her grief was any worse in October-November 2009 than previously. Therefore, her grief and the resulting depression could not account for her starting to steal in the summer 2009. If the explanation is that she needed to drink in order to cope with her grief and depression, that does not explain why she did not steal before 2009. In that period she drank the same amount, but did not steal. She had the means, and she purchased the liquor. In cross-examination she had agreed that, with her earnings as a full-time CSR she could have afforded to buy the alcohol.

24Counsel submitted that there is no suggestion that this was a situation where she was stealing to meet a sudden craving to drink. The thefts were not “spur of the moment”. To the contrary, they were planned and pre-meditated. She was “stock piling” liquor, as indicated by the evidence that on October 31, 2009, having stolen over $1000 worth of liquor, she stole more just an hour later. Thus, this was not a case of an alcoholic grabbing a bottle because of a craving to drink. Counsel submitted that the grievor planned a scheme with her accomplices to steal without getting caught. She agreed that she involved the accomplices, and committed the bulk of the thefts on days when the manager was not present, because that would make it easier to steal without being detected. Counsel urged the Board to conclude from this evidence of planning and premeditation that there was no nexus between the grievor’s depression and the thefts. Counsel submitted that there is no evidence that the grievor’s depression, and her addiction to alcohol (if the Board finds so), in any way diminished her ability to appreciate what she was doing. She admitted in cross-examination that she knew at the time that what she was doing was wrong and that she could be terminated if caught. Her testimony was that she did not just care about anything. Therefore, she did it anyway.

25Employer counsel submitted that the union has failed to establish a positive prognosis that the grievor is unlikely to steal if reinstated. The union’s theory is that the grief about the deaths led to her depression, the depression drove her to alcohol addiction, and the addiction led her to steal liquor. If that theory is to be accepted, the immediate cause of the thefts was her addiction. Counsel submitted that there is no evidence that the grievor’s alcoholism has been resolved. There is no evidence that she received any treatment from anyone. All we have is the grievor’s own testimony that she stopped drinking completely following her criminal charges, and her assurance that she will not drink again. The grievor had agreed that alcoholism is generally a life-long condition. However, she testified that for her that would not be a problem because now she knows the consequences of being an alcoholic. Counsel suggested that such assurance from the grievor is not reliable because in 2009 also she was aware that as a consequence of her thefts she could be discharged, but she carried out the thefts anyway.

26The only treatment the grievor was receiving for her depression was counselling from the social worker. While the grievor testified that she went for counselling once a month, the clinical notes in evidence indicates that the grievor had only two visits with the social worker in the years 2010 and 2011, and five visits in 2012. In her letter dated September 19, 2012 the social worker records that to date there had been only eight sessions of counselling. Therefore, the extent of the counselling was very minimal. Counsel submitted that there was no evidence from the social worker that there was a good prognosis for the future. Therefore it was submitted that there was no evidence from which the Board could be satisfied that the grievor is unlikely to re-offend.

27Counsel pointed out that the grievor had not expressed remorse or apologized to the employer at any time prior to her testimony at arbitration. Even then, her testimony was more about being sorry about the consequences on her life as a result of being caught, not regret for what she did to her employer. Counsel pointed out that the grievor was terminated for an act of dishonesty. Therefore, in order to be considered for reinstatement, she had to demonstrate to the Board that she was no longer prone to dishonesty. She has not done that because she was not honest and forthright even during testimony. Counsel pointed to several areas where her testimony, in her view, was not credible. The grievor testified that she did not tell Dr. Roopnarian about her alcoholism because the doctor did not want to hear about the past and because she was a very private person. However, the doctor’s clinical notes establish that there was discussion about the grievor’s past depression, and that the grievor discussed very personal, financial, and family matters with the doctor. Counsel submitted that the reasonable conclusion is that the grievor did not raise any addiction concern with Dr. Roopnarian because she had no such concern, and alcoholism was an explanation concocted by her in 2010 after her discharge.

28Employer counsel pointed out that in chief the grievor attempted to give the impression that when she was stealing liquor she was grabbing anything available close to the door, suggesting that it was a case of an alcoholic craving for an alcohol fix of any sort. However, the tape establishes, and the grievor agreed, that in several instances she personally selected or helped her accomplices’ select, high-end product from shelves at the back of the store. Also, the grievor’s evidence is that in some instances customers who were complete strangers approached her suggesting that they them up to steal liquor and share the proceeds 50/50. Counsel submitted that this is not credible and highly improbable, and suggested that the grievor was attempting to deceive the Board.

29Reviewing each of the mitigatory factors set out in Re Canada Post Corporation, supra, and endorsed by the Board, counsel submitted that the evidence does not establish sufficient mitigatory circumstances to meet the high onus placed on the union, and that the grievance should therefore be dismissed.

30Union counsel acknowledged that the grievor had committed several acts of theft and has paid a heavy price for her actions. He characterized the issue before the Board as, “What are the mitigatory factors here, and can the competing interests of the employer and the grievor be balanced in the circumstances?” He suggested that in determining this issue, some arbitrators have insisted on expert evidence, while others have accepted the grievor’s evidence. He relied on Re Reed, 1165/91 (Watters) as a case where this Board relied on the grievor’s own testimony to conclude that sufficient mitigatory factors existed to tip the balance in favour of the grievor. Reliance was also placed on Re Creighton 1908/89 (Keller) and Re Companaro, 2232/93 (Watters) as standing for the proposition that where sufficient mitigatory factors are present, the Board may reinstate a grievor who had committed theft from the LCBO.

31Counsel submitted that the evidence is compelling that the grievor deserves to be reinstated. She is a long-term employee, who has had no prior discipline. She had been a good employee until she committed these thefts. He reviewed the evidence about the traumatic events the grievor had to face – the deaths of her husband and brother, the back injury she suffered as a result of a car accident and the work related shoulder injury. As a result, in 2007 she was diagnosed with severe depression. To cope with it, the grievor turned to alcohol. She testified that in the fall of 2009 she “did not care about anything”. That supports a finding that the thefts were an isolated departure by an otherwise good employee.

32Counsel submitted that the union was not suggesting that the grievor suffered from a medical condition as a result of which she was compelled to steal or had no mental capacity. Thus, the union’s evidence does not meet the “medical model” required by some arbitrators. The union’s evidence on the contrary is about “a human story” of the actions of an individual struggling with depression and alcoholism. While the doctor had been of the opinion that the grievor’s depression was being managed with medication, the grievor testified candidly that she was “not fine” and that she could not predict that the grief from the loss of her loved ones would not affect her in the future. However, she told the social worker in May 2010 and testified before the Board, that she had quit drinking following the criminal charges. Counsel acknowledged that it would have helped the grievor’s case, if she had quit with assistance and treatment. However, the absence of medical evidence that she had an addiction or that her addiction was resolved, is not a reason to not accept the grievor’s honest testimony in that regard. That evidence should be given consideration in determining whether the grievor should be reinstated.

33Counsel referred to the following observation of this Board in Re Reed (supra) at p. 10:

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. This is particularly important in cases involving alcohol or drug addiction. Generally, we agree with the Employer that addiction to alcohol or drugs does not operate as a complete excuse or the improper or illegal conduct complained of. The addiction may, however, explain and set the context for aberrant behaviour which departs from the employee’s normal standard. In this sense, the addiction may be a mitigating factor to be considered in assessing the propriety of the disciplinary response. We do not think that this consideration should be restricted to those cases in which a grievor’s level of work performance suffers as a consequence of alcohol or drug use. Rather, the Board is satisfied that these forms of addiction may be considered, along with other factors, in instances involving theft. We have, accordingly, not been persuaded much turns on the fact that the grievor’s act of theft was “once removed” from the addiction as claimed by the Employer.

34Counsel submitted that the importance of the grievor’s depression and alcohol addiction is not to suggest that the grievor had no capacity to appreciate that what she was doing was wrong. It is to show that the wrongful conduct was an aberration in an otherwise blemish free long tenure of employment. The depression and addiction explains her conduct. Counsel conceded that the thefts were premeditated, and that the grievor knew that her conduct was wrong. However, the evidence about her depression and alcohol addiction goes to establish the conduct was an aberration, resulting from the state of despondency the grievor was under in the fall of 2009. Union counsel reviewed the evidence about the price the grievor has already paid as a result of her conduct. She lost her job, is living on a widow’s pension and ODSP benefits, and is unemployed. Considering that she is a 51 year old with only a grade 12 education and the stigma of a criminal record, her prospects of finding employment would be extremely limited.

35Counsel submitted that in the circumstances, the Board should apply the principles in the Reed, Creighton and Companaro cases and consider whether the interests of the grievor in earning her livelihood from her job with the LCBO may be balanced with the employer’s interests. He submitted that the Board should ask, “Is it likely or unlikely that the grievor would re-offend, after losing her job and being convicted for her thefts, and being unemployed for three years?”

36Counsel submitted that the Board should accept that the grievor has exhibited genuine remorse. She pleaded guilty in the criminal trial and made restitution to the employer for the losses it suffered from the thefts. She told the Board that she did something stupid and assured that she would not do it again. He argued that the fact that she knew that her conduct was wrong by itself is not a reason to deny reinstatement. He argued that in the cases he provided also, the Board had concluded that the grievors were so aware, but yet ordered reinstatement in light of other mitigatory factors. Counsel submitted that if the Board reinstates the grievor without any compensation and/or seniority and with conditions it deems appropriate, it would still send a strong deterrent message because the grievor would then have been unemployed for over three years.

37Counsel distinguished the Board decisions relied upon by the employer. In Re Devlin the Board concluded that the grievor had been dishonest in lying to the Federal Government in applying for employment insurance benefits. In Re City of Hamilton, arbitrator Knopf`s comments relied upon by the employer were made after she had concluded that she had no jurisdiction to alter the penalty anyway. The decision in Re Canada Post Corporation was made in the context of a statutory frame work that governed the postal operation.

38Counsel submitted that there is sufficient evidence to conclude that the grievor’s thefts were influenced by her alcoholism, that she has now realised the gravity of her misconduct and that she is unlikely to reoffend. It was submitted that in the circumstances the Board should order that the grievor be reinstated on terms the Board deems necessary.

39In reply, counsel for the employer submitted that there are no two lines of cases where thefts are attributed by the grievor to an addiction or illness. Although arbitrators do not consider discharge to be the automatic response in every theft case, theft is regarded as a very serious offence for which discharge is prima facie a just penalty. Even Re Reed expressly endorsed that principle. Then there is a heavy onus on the union to establish compelling mitigatory circumstances to rebut that presumption. The mitigatory factors to be considered have been set out by arbitrators and this Board. She submitted that the evidence falls far short of establishing sufficient mitigatory factors.

40Counsel submitted that the grievor had been caught stealing “red handed”. Her thefts were videotaped. Therefore, little weight should be given to her pleading guilty in court or her admission to the thefts before the Board, as an indication of remorse. She pointed out that while union counsel told the Board that it was not putting forward a “medical case”, but was relying only on sympathical grounds, he made submissions that the Board should conclude that the grievor’s conduct was caused or influenced by the grievor’s depression and alleged alcoholism. That is a medical defence. It was not, however, supported by any medical evidence. Counsel argued that the Re Companaro, Re Creighton and Re Reed decisions are distinguishable and of no assistance to the union. In Re Companaro there was extensive medical evidence about the addiction, as well as about the rehabilitation efforts the grievor had undertaken. In Re Creighton the grievor had completed a 26 day rehabilitation program, had attended sessions with Alcoholics Anonymous and Gamblers Anonymous and had filed a psychiatrist’s assessment report indicating a very good prognosis. Similarly in Re Reed the grievor had provided evidence of extensive rehabilitation including a formal program in the U.S.A. There was no evidence of rehabilitation presented by the grievor in the instant case. All the Board heard was her own testimony that she had quit drinking and would not drink again. She submitted that such evidence is unreliable and inadequate. Finally, employer counsel submitted that the mitigatory factors and principles set out in Re Canada Post were not contingent on any statutory provisions and pointed out that this Board has expressly endorsed them.

41The union’s suggestion that the Board has an obligation to balance the interests of the grievor and of the employer is not controversial. In the cases cited by the union, including Re Reed, this Board has clearly recognized that. However, that balancing is not done in the abstract or in isolation. It is done by examining whether sufficient mitigatory factors as set in decisions such as Re Canada Post Corporation and Re Carmichael, are established by the evidence. The starting point is that discharge is prima facie the appropriate penalty for theft. This is more so in operations such as that of the LCBO where the employer is particularly vulnerable to theft. The jurisprudence is clear that the onus is then on the union to establish sufficient mitigatory circumstances to rebut that prima facie case for termination. The mitigatory circumstances required have been described by the Board as of “a persuasive nature”, (Re Reed, supra, at p. 10) and as “compelling”. (Re Huvos, supra, at para 17).

42I agree that the fact that the grievor knew that her conduct was wrong is not by itself a reason to rule out reinstatement. If the grievor did not believe that what she was doing was wrong, that would certainly be a strong mitigatory factor in her favour. Its absence, however, is not determinative. “The grievor’s inability, due to drunkenness or emotional problems, to appreciate the wrongfulness of his act” is listed by Arbitrator Arthurs as a mitigatory circumstance. In another award, Re Canadian Broadcasting Corporation, (1979), 1979 CanLII 4015 (CA LA), 23 L.A.C. (2d) 227, arbitrator Arthurs repeated the nine mitigatory factors, and at p. 230 states that the factors he had listed, “while helpful, are not components of a mathematical equation whose computation will yield an easy solution. Rather, they are but special circumstances of general consideration which bear upon the employee’s future prospects for acceptable behaviour …”. The list of mitigatory factors set out in the case law is not exhaustive. In a given case there may be mitigatory circumstances not set out in the previous case law. The decision to substitute a lesser penalty must be made, not on the basis of presence or absence of particular mitigatory factors, but on an overall assessment of all of the mitigatory circumstances in a given case.

43There was debate between the parties about the necessity of medical evidence to prove an alleged addiction, the nexus between the addiction and the misconduct, and the claimed rehabilitation from such addiction. The union submitted that there were two lines of cases, one requiring medical evidence for those purposes, and the other not insisting on such expert evidence. That, in the Board’s view, is not a proper characterization of the arbitral jurisprudence. The case law does not establish such a dichotomy. There is no suggestion in any decision that medical evidence is a technical requirement as a pre-condition for reinstatement in these circumstances. Rather, in every case, it is a matter of the cogency and credibility of the evidence. The arbitrator must be satisfied, based on whatever evidence is before it, that the employee suffered from the alleged addiction at the relevant time, that there was a sufficient nexus between the addiction and the employee’s offending conduct, and that the addiction had since been resolved. The decision of this Board in Re Reed, ­supra, is a good illustration. At p. 8, it is noted that the employer argued that “clear and convincing evidence” was required to establish the addiction, the causal connection between the addiction and the thefts and the rehabilitation, was required, and that medical and expert opinions are required on these issues. It is apparent that the Board did not consider medical/ expert opinion to be a mandatory requirement. Despite the lack of such evidence, the Board accepted the grievor’s evidence. At p. 12 it held `This Board accepts the grievor’s evidence that he engaged in excessive drug taking during the period material to this dispute. Insufficient reason was given to us to doubt that aspect of his evidence”. Further reviewing the evidence, the Board at p. 13 held, “on the evidence before us, it is a reasonable conclusion that the grievor’s normal judgement and conduct were distorted during this period of heavy drug use”. Thus the Board accepted the existence of a nexus between the drug use and the thefts.

44In that case, the grievor had testified, - and this evidence was not contradicted – that his drug use resulted in punctuality problems at work, which was discussed with his manager. Also, the grievor had attempted, albeit unsuccessfully, to stop taking drugs even prior to his arrest and discharge from work. Following his arrest, he contacted the Addiction Research Foundation and a group called Health Care Resources. He was ultimately referred to, and attended, the North Western Institute in Pennsylvania, U.S.A. for an almost month long rehabilitation program. Subsequently, he had attended meetings of Alcoholics Anonymous and Narcotics Anonymous. The grievor had provided details of the rehabilitation and treatment he had sought and received, including dates. All of that evidence was uncontradicted. Also, the grievor had raised her addiction in the criminal proceeding. As part of the sentencing, the court had ordered that the employee undergo rehabilitation. Moreover, the decision does not indicate that the Board had any concern about the credibility of the grievor in that case. In the circumstances, the Board was willing to accept the grievor’s evidence about the fact of addiction, the nexus, and his rehabilitation. At p. 15, the Board in Re Reed wrote:

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. Nevertheless, the Board has determined that the grievor’s efforts are reflective of rehabilitative potential.

Thus, the principle to be drawn from the foregoing is that there is a substantial onus on the grievor to prove the addiction, the nexus between the addiction and the misconduct and the potential for rehabilitation. In rare cases where other clear and cogent evidence exists, that onus may be met even without medical or other expert testimony. Re Reed was such a case.

45In the present case, apart from the grievor’s own assertion, there is absolutely no other evidence, expert or otherwise, suggesting that the grievor drank excessively, leave aside an addiction. No one who had seen her drinking or being intoxicated testified. Her adult daughter lived in the same house with her. Even though, she lived separately downstairs, surely if the grievor was drinking to the extent she claimed, her daughter would have had some knowledge about her mother’s drinking habits. The daughter was not called to testify. More significantly, there is not a shred of evidence that the grievor exhibited any of the well-recognized indicia of alcoholism. While she testified that she drank excessively every day, including at work, no one had ever noticed anything unusual. There is no evidence that the grievor was unsteady on her feet, had slurred speech, was incoherent or smelled of alcohol. Her co-workers, who are trained to identify signs of intoxication, had not raised any concern. Nor did this grievor, unlike the grievor in Re Reed, have any performance issues such as attendance, punctuality issues or inability to perform duties. To the contrary she performed all her job duties, including being in charge of the store as shift leader on a number of occasions, with no issues or concerns. She drove 25 minutes each way to and from work. There is no evidence that the grievor raised her alleged addiction as a mitigating factor at her sentencing hearing in criminal courts. Unlike in Re Reed, here there was no court order that the grievor undergo addiction rehabilitation.

46A further problem is that the grievor’s testimony in many aspects is not credible. Some of her testimony simply does not ring true. It is improbable that customers who were complete strangers to her, and whose names even were not known to her, would approach her suggesting that they team up to steal liquor and share the proceeds 50/50. Her story was that she teamed up with complete strangers, developed a scheme to steal, executed the thefts. She had no idea what the stolen liquor consisted of. Yet she trusted a total stranger to walk out with it and put half in her car. Then there was no contact subsequently. Even during her testimony she had no idea who her accomplices were. That simply is not a believable story. It is not credible that without any pre-arrangement, a stranger would approach an LCBO employee and ask whether today is a good day to steal, as the grievor would have the Board believe.

47The problem with credibility does not stop there. One of her accomplices was a friend. That friend could have testified to corroborate the nature of the scheme to commit the thefts, and that she and the grievor devised the scheme because they both had a drinking problem at the time, as the grievor had testified. The friend was not called to testify. Moreover, the grievor testified that she did not care what type of alcohol it was, she just took whatever was closest to the door. The evidence is quite to the contrary. The product stolen was high-end expensive product, often stolen from the back of the store. In several instances the grievor herself selected and boxed the bottles. Yet she testified that she had no idea what the stolen liquor was and did not care. The evidence is very inconsistent with the story of an alcoholic grabbing any alcohol to satisfy a craving.

48Also militating against the grievor is her failure to accept responsibility when she had ample opportunity. When the grievor was confronted by the employer with the allegations of theft through a notice of Intended Discipline, She could have, but did not, come clean. When a discipline meeting was scheduled she had a further opportunity to admit to the thefts and to explain about her alcoholism. That meeting was cancelled at the union’s request. Unlike in some of the other cases cited, there is no evidence that this grievor’s refusal to talk was based on advice by criminal defence counsel. Also relevant is the fact that the thefts committed by the grievor were not a result of a momentary decision spurred on by her addiction. To the contrary, the misconduct was pre-meditated, well-thought out and planned. The grievor took precautions to avoid detection, for example by enlisting the help of others and by committing most of the thefts on days when the manager was not present and she was in charge of the store.

49Particularly considering the lack of credibility in other critical aspects of the grievor’s testimony, the Board is not prepared to accept, assuming that the grievor was an alcoholic as she claims, the grievors assurance that she has quit drinking and will not drink again. Unlike in Re Reed and all of the other cases relied upon by the union, here there is no evidence that the grievor received any treatment or even counselling for alcoholism. The evidence is that even the counselling she received from the social worker had to do with stress the grievor was suffering from following her criminal conviction and dismissal from work. If she had been addicted to alcohol to such an extent as would cause her to steal alcohol from her employer as she claims, it is not reasonable to conclude that she is now rehabilitated, solely on the basis of her own cavalier assertion that she has stopped drinking and will not drink again.

50The grievor is a relatively long term employee. She had no prior discipline on her record. There is no question that the grievor has paid a high price as a result of the thefts she committed. She has lost a job with the crown, and has a criminal record. Particularly considering that she only has a grade 12 education, it would make it very difficult to find comparable employment. It is tragic that she has been driven to financial ruin as a result. The Board considers these unfortunate circumstances to be mitigating factors. That “human story” as the union put it, evolves much sympathy. However, these mitigatory factors that stand in favour of the grievor fall short of overcoming all of the other factors that are adverse to a decision to reinstate. To begin with, it has not been established that the grievor was subject to an alcohol addiction at the material time. Even if she was, the totality of the evidence is more consistent with the conclusion that the thefts were not connected to her addiction. There is also no reliable evidence that satisfies the Board that the grievor, if she had an addiction, has been rehabilitated, that a relapse is unlikely and that the grievor is not likely to re-offend.

51In all of the circumstances the Board is of the view that the union has failed to establish sufficient mitigating circumstances so as to cause the Board to intervene and alter the penalty of discharge. Accordingly, the instant grievance is hereby dismissed.