An Ontario liquor retailer that fired an employee for stealing booze from its warehouse acted appropriately, despite the employee’s claims dismissal was too harsh because he was addicted to drugs and alcohol, an arbitration board has ruled.
Gordon Carmichael, 35, worked in the operations department at the Durham Retail Service Centre, a warehouse for the Liquor Control Board of Ontario (LCBO) in Whitby, Ont. He was a seasonal worker but had worked on and off for the LCBO for eight years, unloading containers and filling store orders by moving cases of product with a forklift. Because of the large size of the warehouse and amount of product, there was little supervision of individual workers and it was difficult to track individual bottles, especially since some would break.
On Aug. 31, 2009, Carmichael was nearing the end of his shift. He took a bottle of rye whisky from a case and put it under his shirt in the waistband of his pants. However, the warehouse was monitored by video cameras and warehouse security saw Carmichael taking the bottle. The general manager was contacted and Carmichael was stopped when he was leaving at the end of his shift.
Carmichael was taken to a boardroom along with a union representative and asked if he had any product on him. He denied it but, when asked again, admitted he did and revealed the bottle. The general manager left for a brief time, then returned and asked if Carmichael had any more product in his locker. Carmichael said he didn’t and mentioned he had a “problem.” The general manager said they wouldn’t get into that at the moment and Carmichael was suspended with pay pending an investigation.
The LCBO determined the theft was a breach of trust, which was very serious considering Carmichael worked with little supervision in the warehouse. At a meeting on Sept. 4, Carmichael apologized and said he would never do it again. He also said he had a drug addiction — he had been taking OxyContin for the past two years to deal with family troubles and claimed he had planned to sell the bottle of whisky for drug money — and he would get help.
However, Carmichael didn’t provide any medical evidence of an addiction, despite the fact he had seen a doctor recently, and he hadn’t mentioned any addiction when he was disciplined previously. He had also failed to act on a referral to the company’s employee assistance program (EAP) after family problems had caused attendance issues that led to three-day suspensions in April 2008 and January 2009. The seriousness of Carmichael’s misconduct and his failure to back up or act on his claims of addiction left the LCBO with little faith in him as an employee, so it fired him on Sept. 8, 2009.
The union filed a grievance, claiming Carmichael was dismissed without just cause and the LCBO violated his right under the collective agreement to be informed in advance of the purpose of a meeting that was meant to discuss “a matter which may result in disciplinary action being taken” and to have union representation at that meeting.
But the LCBO did not violate the agreement as the initial meeting was only to confirm he stole the bottle of whisky, found the Ontario Crown Employees Grievance Settlement Board. Since it was the end of his shift, the LCBO had to act fast to intercept him and, once it confirmed he had taken the product, the general manager left him with the union representative, said the board. Carmichael also admitted he knew why he was being taken to the boardroom and there was a union representative there from the beginning. In addition, after the LCBO confirmed he had taken a bottle and had no other product in his locker, Carmichael tried to discuss why he took it but was told they would discuss it later.
“The purpose was not to discuss a matter that may result in disciplinary action being taken against (Carmichael),” said the board. “There was no ‘discussion’ as (Carmichael) was simply asked if he had LCBO product concealed on his person or in his locker.”
Can’t blame theft on addiction: Board
Regardless of Carmichael’s addiction claims, the theft of the whisky was a premeditated act that wasn’t caused by an addiction, ruled the board. Carmichael admitted he planned to trade the whisky for drugs and he had contacted a supplier earlier in the day with that intention. The fact he took a specific brand because he had a better chance of trading it for drugs and his admission he had taken drugs twice already made it unlikely he was acting out of desperation for a fix, said the board.
Though Carmichael was apologetic, his inaction in trying to deal with his addiction spoke louder than his words, said the board. He had refused to follow up on the LCBO’s referral to its EAP, did not attend a rehabilitation centre and wasn’t actually receiving any professional assistance, found the board. This gave the LCBO little reason to think he would be able to solve his problems anytime soon and trust him again.
In addition, Carmichael told the employment insurance commission he “did not actually take any products or items from my place of employment,” found the board. He also testified he “technically” didn’t take anything because they stopped him before he could leave. This, said the board, showed Carmichael didn’t see his actions as attempted theft and he didn’t understand the seriousness of his misconduct or lied about it. So there was no reason the LCBO should think it could trust him again and restore the employment relationship.
“Given (Carmichael’s) lack of candour, his attempts to diminish the severity of his conduct, his inability to resist the temptation to exaggerate, bend the truth and twist words when it serves his purposes and his dishonesty about when he stopped using drugs, I believe that the problems that led to his discharge have not been resolved,” said the board.
For more information see:
•O.P.S.E.U. v. Ontario (Liquor Control Board), 2010 CarswellOnt 9851 (Ont. Crown Emp. Grievance Settlement Bd.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, including a special introductory offer for new subscribers, visit employmentlawtoday.com.
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