The grievor claimed that he had stolen from his employer to feed his drug addiction. However, the arbitrator could find no connection between his addictions and his actions. The union had not provided a prima facie case for discrimination.
A worker was fired after he was caught stealing copper wire from his employer and selling it to a recycler. The union grieved, arguing that the termination was discriminatory.
The union said the worker should be accommodated for his disabilities, which were identified as dependencies on cocaine, gambling and marijuana. The worker also allegedly suffered from alcohol abuse and depression at the time of the thefts.
Employed by a municipal transit authority since 1997, M.S. began as an electrical assistant and, over time, became a journeyman electrician.
When he was fired in 2010, M.S. was the supervisor of a two-person crew that worked on smaller construction projects associated with the subway. M.S. worked with little supervision. He was also authorized to order supplies from stores for his work.
On May 12, 2010, the employer’s corporate security department was tipped that spools of copper wire stamped with the employer’s marks were seen at a recycling facility. Police were notified.
On May 24, 2010, police provided the employer’s corporate security with a number of still images captured from closed circuit video cameras located at the recycling facility.
$500 for spools of copper wire
The images showed M.S. unloading spools of copper wire. Police were told M.S. had been paid $500 for the spools of wire.
On June 9, M.S. was arrested by police near his house and charged with theft over $5,000. During questioning M.S. admitted to two other thefts. He said he was struggling with addictions to cocaine and gambling. M.S. was relieved from duty and the union grieved.
On July 7, M.S. was fired.
The union said that termination for theft was not automatic and that there were significant mitigating factors in this case that warranted M.S.’s reinstatement. M.S.’s addictions to cocaine and gambling were medical conditions that contributed to his misconduct: He used the money he got from selling the stolen property to purchase cocaine.
M.S. was sincerely remorseful. He had made restitution for the thefts and had taken action to address his disabilities. The union said the employer had not lived up to its obligations to M.S. under the Human Rights Code when it failed to consider whether or not M.S.’s offence was related to his disability. The union argued that M.S. should be reinstated and that the parties should be directed to address how to accommodate his disabilities.
Fired because he stole
M.S. was fired because he stole, not because he was disabled, the employer said. He was in a position of trust and he betrayed his employer by committing a premeditated theft. The cocaine addiction was exaggerated and the gambling addiction was a fabrication — both of which were called into service as part of an elaborate scheme to shift the blame to alleged addictions in order to avoid termination, the employer said.
In fact, the employer said, there was no nexus between the disability and the offence: the evidence showed M.S. was not short of money and did not need to steal in order to feed his addiction.
The Arbitrator tested the case for termination for just cause in the labour relations context and analyzed the human rights angle separately.
The Arbitrator upheld the termination.
There was no doubt that MS.’s misconduct was serious and that termination was warranted unless there were strong mitigating factors, the Arbitrator said. There were not.
“[T]he evidence supports the conclusion that the grievor ordered the copper wire and intentionally sold it to a recycler in order to obtain money to purchase cocaine. Further, the grievor did not need to steal from the Employer to pay for his cocaine; he had other means to finance his addiction. However, he chose not to use his own money. Instead, he chose to steal from the Employer. This was not an impulsive act; it was a premeditated criminal act.”
Such an act of premeditated theft struck at the heart of the employment relationship, the Arbitrator said. In M.S.’s favour were his good work record and his frank acknowledgement of his misconduct. That wasn’t enough, the Arbitrator said. The employer had just cause to terminate M.S.
The Arbitrator also rejected the argument that M.S. had been discriminated against on the basis of a disability.
No prima facie case for discrimination
The Arbitrator accepted that M.S.’s addiction to cocaine constituted a disability. However, the onus was on M.S. to establish a prima facie case that he had been discriminated against. It was necessary for M.S. to establish a nexus or a connection between the misconduct and his disability. He was unable to do so.
“The grievor clearly suffers from a disability and he suffered adverse treatment when he was terminated. However, I find that the disability was not a factor in the adverse treatment. The only connection between the theft and the cocaine addiction is the fact that the grievor used the money he received for selling the stolen copper wire on May 11, 2010 to purchase an eight ball of cocaine.”
The union had not established a prima facie case of discrimination, therefore the employer had no duty to accommodate M.S.
The grievance was dismissed.
Reference: Toronto Transit Commission and Canadian Union of Public Employees, Local 2. John Stout — Sole Arbitrator. Ryan Goldvine for the Union. Steve Lavender for the Employer. August 6, 2011. 43 pp.
