The case of two Hiram Walker employees who stole alcohol
Two Hiram Walker employees hatched a plan to steal some whiskey from the distillery for their own, private stash.
One of the employees bought some plastic jugs and smuggled them into the far reaches of the Windsor, Ont. warehouse, where barrels of 25-year-old whiskey were stored. The conspirators had siphoned the equivalent of 38 bottles of retail product when their supervisor discovered them.
They were suspended, then discharged. One of the pair took an early retirement, but the other filed a grievance, claiming a five-month “problem with alcohol.” The union argued he should be accommodated, not fired.
The question before the arbitrator was whether this was a case requiring an employer to accommodate an addiction, as mandated by the Ontario Human Rights Code?
Hiram Walker’s director of industrial relations said he had never seen “anything of this size in terms of employee theft.” Not only that, but the tax authorities took a very dim view of loss of product in that industry; the company was particularly concerned about whiskey being stolen and sold on the street. It therefore had a well-established history of punishing theft with discharge.
The employee had no record of an alcohol problem; he didn’t have an attendance problem, and no one had ever smelled alcohol on his breath at work. He was sober when he committed the theft; in fact, he planned it in advance. His only rehabilitation attempts were counselling by his mother and wife, according to the grievor, who added that he was “now better.”
The union argued alcoholism doesn’t always show up as sub-standard work performance, poor attendance or on-the-job impairment; it can manifest itself in other egregious behaviour, like stealing. The union noted no product ended up on the street and, as mitigating factors, pointed to the employee’s 15 years’ seniority and unblemished disciplinary record. He also had personal problems involving a child needing considerable supervision.
Nevertheless, the arbitrator said unequivocally, “I side with the employer on this one.” He characterized the grievor as a controlled drinker, who did not steal to feed an addiction but to provide a supply for himself and others. He noted the grievor was always able to attend work and perform adequately and that he controlled his drinking without professional help. He therefore did not show any need for accommodation.
The arbitrator noted the duty to accommodate might have arisen but only if the grievor’s condition, and hence his behaviour on the job, had been much worse. In his view, “the large quantity involved, the fact that it was well-planned, the fact they took advantage of an unsupervised work area, are factors that override the mitigating ones.”
So, what does a successful alcoholism defence look like? In another case, the behaviour was similar, but the outcome different.
A Canadian Pacific rail yard worker with 29 years’ service and one minor rule violation was discharged for theft. Police were tipped that he was stealing from his employer. A search of his home revealed many items lifted from the workplace. He expressed remorse for his actions.
He stated that he had suffered from alcoholism for years and asked for help in dealing with that problem. In addition, he was struggling with a difficult divorce. The worker went for treatment at a detoxification centre and began attending Alcoholics Anonymous. At the time of the arbitration, he was no longer drinking.
The arbitrator concluded alcoholism was the driving force behind the worker’s “aberrant behaviour” and that there were enough mitigating factors to allow a second chance as long as he agreed to random drug and alcohol testing and provided evidence of continued attendance at Alcoholics Anonymous.
What conclusions can be drawn from these two situations?
To use alcoholism as an argument to be re-instated, an employee has to show evidence of a serious problem and solid evidence of rehabilitation and counselling. Alcoholism cannot be seen as an “automatic defence.” You can’t concoct a disease and expect it to fly as a defense for bad behaviour.
For more information: Hiram Walker & Sons Limited and the CAW, Local 2027, Ontario Arbitration Board, P. G. Barton – Sole Arbitrator, Dec. 17, 2001. Canadian Pacific Railway Company and the CAW, Local 101, Canada Arbitration Board – Michel Picher, Jan. 28, 2003.
Lorna Harris is the assistant editor of CHRR’s companion publication CLV Reports, a newsletter that reports on collective bargaining and labour relations. She can be reached at (416) 298-5141 ext. 2617.
One of the employees bought some plastic jugs and smuggled them into the far reaches of the Windsor, Ont. warehouse, where barrels of 25-year-old whiskey were stored. The conspirators had siphoned the equivalent of 38 bottles of retail product when their supervisor discovered them.
They were suspended, then discharged. One of the pair took an early retirement, but the other filed a grievance, claiming a five-month “problem with alcohol.” The union argued he should be accommodated, not fired.
The question before the arbitrator was whether this was a case requiring an employer to accommodate an addiction, as mandated by the Ontario Human Rights Code?
Hiram Walker’s director of industrial relations said he had never seen “anything of this size in terms of employee theft.” Not only that, but the tax authorities took a very dim view of loss of product in that industry; the company was particularly concerned about whiskey being stolen and sold on the street. It therefore had a well-established history of punishing theft with discharge.
The employee had no record of an alcohol problem; he didn’t have an attendance problem, and no one had ever smelled alcohol on his breath at work. He was sober when he committed the theft; in fact, he planned it in advance. His only rehabilitation attempts were counselling by his mother and wife, according to the grievor, who added that he was “now better.”
The union argued alcoholism doesn’t always show up as sub-standard work performance, poor attendance or on-the-job impairment; it can manifest itself in other egregious behaviour, like stealing. The union noted no product ended up on the street and, as mitigating factors, pointed to the employee’s 15 years’ seniority and unblemished disciplinary record. He also had personal problems involving a child needing considerable supervision.
Nevertheless, the arbitrator said unequivocally, “I side with the employer on this one.” He characterized the grievor as a controlled drinker, who did not steal to feed an addiction but to provide a supply for himself and others. He noted the grievor was always able to attend work and perform adequately and that he controlled his drinking without professional help. He therefore did not show any need for accommodation.
The arbitrator noted the duty to accommodate might have arisen but only if the grievor’s condition, and hence his behaviour on the job, had been much worse. In his view, “the large quantity involved, the fact that it was well-planned, the fact they took advantage of an unsupervised work area, are factors that override the mitigating ones.”
So, what does a successful alcoholism defence look like? In another case, the behaviour was similar, but the outcome different.
A Canadian Pacific rail yard worker with 29 years’ service and one minor rule violation was discharged for theft. Police were tipped that he was stealing from his employer. A search of his home revealed many items lifted from the workplace. He expressed remorse for his actions.
He stated that he had suffered from alcoholism for years and asked for help in dealing with that problem. In addition, he was struggling with a difficult divorce. The worker went for treatment at a detoxification centre and began attending Alcoholics Anonymous. At the time of the arbitration, he was no longer drinking.
The arbitrator concluded alcoholism was the driving force behind the worker’s “aberrant behaviour” and that there were enough mitigating factors to allow a second chance as long as he agreed to random drug and alcohol testing and provided evidence of continued attendance at Alcoholics Anonymous.
What conclusions can be drawn from these two situations?
To use alcoholism as an argument to be re-instated, an employee has to show evidence of a serious problem and solid evidence of rehabilitation and counselling. Alcoholism cannot be seen as an “automatic defence.” You can’t concoct a disease and expect it to fly as a defense for bad behaviour.
For more information: Hiram Walker & Sons Limited and the CAW, Local 2027, Ontario Arbitration Board, P. G. Barton – Sole Arbitrator, Dec. 17, 2001. Canadian Pacific Railway Company and the CAW, Local 101, Canada Arbitration Board – Michel Picher, Jan. 28, 2003.
Lorna Harris is the assistant editor of CHRR’s companion publication CLV Reports, a newsletter that reports on collective bargaining and labour relations. She can be reached at (416) 298-5141 ext. 2617.
