Caught red-handed, and later fired after video surveillance recorded him stashing a 40-ounce bottle of Crown Royal in his pants, a warehouse worker for a provincial government liquor retailer grieved his termination.
The union argued that the termination was void. The employer’s post incident interview with the worker before he exited the building constituted a “meeting” within the meaning of the collective agreement, the union said. This violated the collective agreement because — in addition to the right to union representation — the contract also entitled the worker to advance notice about the purpose of any meeting that may lead to discipline.
In any case, the union said, a lesser penalty was appropriate. The theft was an aberration propelled by drug addiction. The worker was contrite and was taking action to address his condition.
A seasonal worker with eight years’ service, G.C. was one of 220 full and part-time workers employed at the 550,000 square foot warehouse that annually ships more than 50 million cases of beer and alcohol to dedicated liquor and beer retail outlets.
Rye whiskey under his shirt
Ten minutes before the end of his day shift on August 31, 2009, video surveillance picked up G.C. slipping a large bottle of rye whiskey under his shirt and into the waistband of his pants.
Security immediately notified the general manager of operations who, in turn, called the human resources manager. A union representative was called and the three were present when G.C. was escorted by security into a boardroom.
After initially denying that he had any product on his person, G.C. confessed and produced the bottle. He then asked to speak with his union representative and the two left the room.
When they returned, G.C. was asked if he had stashed any other product either on his person or in his locker. G.C. said he didn’t and then he said that he had a “problem.” The manager responded that they were not going to get into that at that point. G.C. was informed that he was relieved from duty — with pay — and that he would be notified about next steps.
G.C.’s suspension was confirmed by letter the next day. He was informed of the charges against him, that an investigation was underway and that disciplinary action was possible. He was called to a meeting three days later.
At the follow up meeting, G.C. expressed his contrition and sought to blame the theft on his addiction to OxyContin and Percocet. According to G.C., he had no money and he was running out of drugs. His plan was to trade the stolen liquor for drugs. After his suspension, G.C. attended a walk-in clinic and was referred to a rehabilitation facility. G.C. had left a phone message but he had not heard back.
Four days later G.C. was fired. The union grieved.
The Arbitrator dismissed the union’s charge that the termination should be set aside because the employer failed to give advance notice of the reason for the initial interview with G.C. The Arbitrator acknowledged that this was a substantive right under the collective agreement, but it did not apply in this case because what occurred was not a meeting.
One question, no discussion
Management has a right to confront an employee who it suspects is stealing, the Arbitrator said. In this case, what occurred was an effort by the employer to recover property that the employee was attempting to steal. G.C. was only asked one question, though he had to be asked it twice before he gave an honest answer. There was no discussion.
The union suggested that G.C. should have been permitted to speak to his union representative before the meeting, but the collective agreement contained no such requirement, the Arbitrator said. However, G.C. did have capable union representation with him during the encounter and she raised no objections.
The Arbitrator also rejected the union’s argument that the penalty of termination should be reduced in recognition of G.C.’s diminished responsibility because of his drug addiction and in view of his subsequent efforts to straighten out. The union sought to rely on G.C.’s drug problem to mitigate the penalty of termination rather than to seek an accommodation pursuant to the Human Rights Code.
However, unable to document any clinical rehabilitation attempts or contacts with the company Employee Assistance Program before the incident and only spotty attendance at a 12-step program afterwards, G.C. wasn’t in a position to establish either that he was an addict or that he had embraced recovery.
It was clear, however, that he was a recreational drug user and possibly even an abuser, the Arbitrator said.
Not a credible witness
G.C. was not a credible witness. “He exaggerated the frequency of his attendance at the NA meetings. In his letter to the Employment Insurance Commission, he was not truthful about the fact that he had been caught stealing from his employer. He lied outright to me about when he stopped taking the drugs,” the Arbitrator said.
G.C. was unable to satisfy the Arbitrator that he had made efforts to deal with the problems that led him to steal.
“He has never attended any formal rehabilitation therapy. He never undertook a residential program or received any type of counselling from a trained medical professional … It makes no sense to reinstate the grievor when he has not received any treatment for the condition that allegedly gave rise to the theft in the first place.”
G.C. was guilty of serious culpable misconduct, the Arbitrator said, and it was not appropriate to mitigate the penalty of discharge.
The grievance was dismissed.
Reference: Ontario Public Service Employees Union and The Crown in Right of Ontario (Liquor Control Board of Ontario). Janice Johnston — Sole Arbitrator. Alick Ryder for the Union and Adrienne Couto for the Employer. December 9, 2010. 37 pp.
