In a recent BC award, Arbitrator Robert Diebolt, Q.C. dismissed a grievance in which CEP Local 1123 alleged that the dismissal of an employee by Norske Canada Limited’s (Elk Falls location) for theft was an excessive disciplinary penalty.
In rejecting the union’s attempt to establish a causal nexus between the employee’s known alcoholism and his periodic theft of scrap metal from the company, Arbitrator Diebolt referred to the evidence elicited in the cross-examination of a Union witness who was an expert in addiction medicine. The expert had testified in chief that it was “highly probable that (the theft) was an action inevitably influenced by his untreated alcoholism.” Upon cross-examination, however, the expert admitted that, while untreated alcoholism may well compel one to find a manner by which to satisfy that addiction, there did exist a range of choice available as to the potential means of satisfying the addiction, of which theft was but one option.
Thus, while the employee’s alcoholism may well have impaired his judgment generally, and in that sense constituted a mitigating factor, there was no evidence that established a causal nexus between the employee’s disease and the theft. Consequently, the fact that the employee was an alcoholic did not materially assist him on the issue of whether discharge was an excessive disciplinary measure.
It should be noted that the arbitrator rejected the company’s objection to the introduction of the medical expert’s evidence on the basis that it constituted post-termination evidence. The company had relied on the Supreme Court of Canada decision in Cie minière Québec Cartier v. Québec, [1995] 2 S.C.R. 1095. Therein, post-termination evidence was ruled inadmissible in certain circumstances. Mr. Diebolt distinguished that case, in which evidence of the post-termination recovery of was judged to be inadmissible. In this instance, however, the evidence which the union sought to admit, while compiled post-termination purported to deal with the employee’s condition at the time of the theft.
In determining that dismissal was not too severe a penalty in the circumstances the arbitrator noted, amongst other points, that this was not a case where an alcoholic employee stole alcohol from an employee, nor was it an instance where an drug addict stole drugs from an employer. In such instances a casual nexus may be proven.
The arbitrator stated that the ultimate issue when deciding whether dismissal was justified when an employee has engaged in theft is whether the employment relationship can be restored. In examining the history of this employee’s abuse of alcohol, a history characterized by incomplete recovery efforts and lapses, the arbitrator found that the evidence did not establish any reasonable prospect for rehabilitation, and consequently that, in the circumstances, dismissal was justified.
(click here for full text of the award)