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Queen's University
 

Gooding

In this case, Mr. Gooding, a liquor outlet manager, was dismissed for stealing alcohol from the liquor outlet over a period of one year. Gooding got rehabilitated, expressed remorse to the employer and asked it to consider a less severe penalty.  The Court of Appeal determined that the employee had not established prima facie discrimination because although he had a disability (alcoholism) and suffered adverse effects (dismissal) his disability was not the cause of the adverse effects.  Theft, not alcoholism, led to his termination.  The Court then ordered the arbitrator to use the hybrid approach to determine whether termination was excessive in this case.

To determine whether the penalty was proportionate to the misconduct, he Arbitrator considered eight mitigating factors:

  1. the special nature of the disease of addiction in relation to the specific circumstances of the case
  2. the compulsion associated with an addiction
  3. the nature and seriousness of the misconduct
  4. the impact beyond the individual grievor, including the risk posed to the employer and the impact on others in the workplace such as employees or the public
  5. the need for deterrence
  6. the employer's efforts to help the employee deal with the addiction
  7. the steps taken by the employee to deal with the disease
  8. the grievor's employment record  
  9. Other relevant factors

He determined that the termination was not excessive in this case. 

Analysis:

In favor of the grievor were factors 1, 2, 6, 7, 8.  The grievor suffered from alcoholism (factor 1), a dependency which is known to lead to compulsive acts of theft (factor2). Even though his employer made little effort to help him (factor 6), he went into treatment and made a full recovery (factor 7). But for the theft, he had a clean employment record: 25 years without discipline.

On the other hand, factors 3, 4, and 5 were in favor of the employer. Theft is amongst the most egregious of workplace misconduct (factor 3). Stealing from the liquor store had a negative impact at the workplace; it removed the fundamental entitlement of employer and employees to have honest employees/coworkers (factor4). There is a strong moral requirement to deter such behavior, both in the workplace and in society (factor 5.

Other relevant considerations were remorse, potential for rehabilitation, nature of the theft and clarity of employer’s policy/practices. Although the grievor showed genuine remorse and the potential for rehabilitation, the nature of his crime was neither isolated, spur of the moment, insignificant (in cost) and the employer’s policies and practices were never an issue.

Conclusion: the presence of an addiction or dependency does not necessarily immunize an employee from disciplinary or corrective action.

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000