A labour arbitrator considered when the presence of mitigating factors (including, what the arbitrator described as “a painful, if not abusive, relationship with her former common-law partner” and drug use) were sufficient to reinstate an employee terminated for admitted theft. The case is Canada Post Corp. (2014), 121 C.L.A.S. 189 (M. Picher).
The Association argued that these factors, offered by way of explanation rather than excuse, should result in the reinstatement of the griever to her employment (notwithstanding the seriousness of the offence she committed). The Arbitrator said that:
The difficulty I have with the fundamental position asserted by the Association is to accept that her conscious and repeated acts of theft can be understood or excused on the basis of her admitted personal stresses and ongoing drug use.
There is nothing in the evidence before me to suggest, must less confirm, that the grievor was bereft of judgement or of the ability to make decisions, by reason of her involvement with drugs.
He then goes on to make the following damning comment:
What emerges, unfortunately, is a picture of the grievor as person who can be selective, if not deceptive, in her account of events and her overall truthfulness with respect to disclosing the full facts. Having regard to the totality of her evidence in these proceedings, and to her dealings with others in the past as reflected in the testimony before me, I am left with some difficulty as to the grievor's overall credibility. I say that with some regret, as I do not doubt that she has suffered greatly in her personal life and may well, as she asserts, have turned the page and may now hopefully be moving towards being a better and more responsible person in relation to her children, to others and to herself.
The arbitrator concluded that, in the circumstances, to return to grievor with the employer would “constitute unfairness towards the Corporation both as regards the presence of the grievor in the workplace and the undermining of the deterrent effect which her discipline should have for other employees in the bargaining unit.”. Accordingly, the“actions did irrevocably break the bond of trust essential to her ongoing employment”.
The Moral of this Story
In Ontario, save where the parties have agreed to a specific penalty in their collective agreement, the arbitrator has jurisdiction to substitute a penalty for the one imposed by the employer. Among the factors that will be considered are those identified by Arbitrator Harry Arthurs in Canadian Broadcasting Corporation and CUPE, (1979), 23 L.A.C. (2d) 227 (Arthurs):
- bona fide confusion or mistake by the grievor as to whether he was entitled to do the act complained of;
- the grievor’s inability , due to drunkenness or emotional problems, to appreciate the wrongfulness of his act;
- the impulsive or non-premeditated nature of the act;
- the relatively trivial nature of the harm done;
- the frank acknowledgement of his misconduct by the grievor;
- the existence of a sympathetic, personal motive for dishonesty, such as family need, rather than hardened criminality;
- the past record of the grievor;
- the grievor’s future prospects for likely good behaviour, and
- the economic impact of discharge in view of the grievor’s age, personal circumstances, etc.
But compassion cannot, according to Goodyear Canada Inc. (2005), CanLII 57507 (ON LA) and Ontario Power Generation Inc. (2000) 125 L.A.C. (4th) 286 (Swan) “trump either the seriousness of the Grievor’s two culminating offences nor their effect on the employment relationship.”
In any event, this case supports the proposition that termination is not an automatic penalty, even in a case of admitted theft, and consideration of all surrounding circumstances will be required in arriving at the appropriate penalty.