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HomeMy WebLinkAbout1986-1641.Enwright.88-02-25IN TNE NATTER OF AN ARBITRATION Under THE CNONN EMPLOYEES COLLECTIVE BARGAINING ACT THE GRIEVANCE SETTLEMENT BOARD / Between: OPSEU.(John Enwright)- and . Before: For the Grievor: .I For the Employer: Hearings: The Crown in Right of Ontario (Min~istry of Correctional Services) I.C. Springate .I. Freedman L.R. Turtle Vice-Chairman Meqbe.r Member R. Stoykewych Counse 1 Cavalluzzo, Hayes & Lennon Barristers & Solicitors J.F. Benedict Manager, ~Staff Relations and Conipensation Ministry of Correctional Services April 1, 1987 August 7, 1987 August 10, 1987 August 11, 1987 September 15, 1987 Grievor Employer . . -2 -2; The union and the gr ievor allege that the grievor was discharged without just cause. The grievor is 34 years qf age. Prior to his discharge he had been employed as a correctional officer at the Barrie jail for about. 10 years. He had no disciplinary record. ~Mr. D; McFarlane, the superintendant of the jail; 'testified that when at work the grievor was "an excellent employee". It was on. Mr. McFarlane's recommendation the the grievor received an award for performance excellence as a result of his apprehension of an escaped prisoner without regard to his personal safety in 1984. In December, 1986, Mr. McFarlane discharged the grievor, primarily on account of his absenteeism record. The grievor fi1ed.a grievance challenging the propriety of his .discharge. The employer's reply to .the grievance, which was filed at the. hearing, indicates that the employer was prepared to grant the grievance subject. to certain conditions. The grievor declined to accept the conditions and, accordingly, the matter came on for hearing before this Board; The employer contends that the grievor has a drinking problem and that this drinking problem'gave rise to an excessive level of absenteeism on his part. The employer led evidence relating to. the grievor's attendance record. Over the strenuous objections of union counsel, the employer also led. evidence with respect to certain. off-duty conduct on the part of the grievor which, it claims, illustrates the extent of his drinking problem. The union led .no , evidence. It is the union's con:ention that the employer failed to ., -.3 -, demonstrate that a "culminating incident" occurred such as to justify the employer's action in reviewing the grievor's attendance record. The union further submits that the grievor's attendance records did not justify his discharge, particularly in light of' the fact that his attendance had been improving. The union.acknowledges that at 'the time of his marriage breakdown in 1984 the grievor did utilize an undue amount of alcohol,.but. denies he has Rxperienced any drinking problems subsequent to that time. The union further contends that the grievor's conduct away from the work ,place has no relevance to these proceedings. Prior to 1983 the grievor's attendance record compared favourably with the average. for correctional officers. at the Barrie jail. In 1983, he was absent for an extended period.of time due to.a knee injury and resulting surgery. The employer does not, however, rely. on the grieyor's absences in 1983. The employer does rely on his absentee record commencing in 1984. He was absent. from work on 1D separate occasions .that year for a .total of 45.5 days. This compares with an average of 12.18 days for all correctional officers in the jail. .In June of 1984 the employer required'that the grievor undergo a medical examination. The grievor selected his personal physician, Dr. Joseph Aikens, to perform the examination. Dr. Aikens wrote to. Mr. McFarlane on August 13, 1984.. In his' letter, Dr. Aikens indicated that he had seen the grievor in March, 1984, at which time the grievor. seemed agitated and stressed, due, in the doctor's opinion,, to a form of "job burn out". Dr. Aikins added that~ subsequen't to March the grievor's wife left him, causing , additional stress. Dr. Aikins added~, however, that the grievor was i recovering from his marriage breakdown and was both- physically. and emotionally fit to work at his job. In 1985 the grievor's absenteeism record continued to exeed the average for correctional officers at the Barrie jail. .He was away on 14 separate occasions for a total of 26 days. This compared with an average of 15.75 days. of absence for all correctional officers. On September 12, 1985 Mr. E. Francis, assistant superintendant of the jail, wrote the grievor to express concern about his attendance record. On February lg., 1986 the jail's attendance review committee wrote. the grievor- outlining his absenteeism record for 1985. .The committee had a practice of writing to employees whenever their absenteeism rate exceeded a level'based ion the averag'e rate for all employees within the Ministry. We agree with the submission of.union counsel that the. absenteeism rate for all employees. o,f the Ministry is~ not particularly helpful when assessing the absences of correctional officers. It is noteworthy; however; that rather than merely send the grievor a letter, as, it had done in the past, the committee requested that the grievor meet. with members ~of the committee. The grievor met with the committee members on March 7, 1986. At that time he indicated that he would endeavour to improve his attendance record. On June 18, 1986 the grievor was arrested and charged by the Barrie police .with being intoxicated in a.public place. while at the police station he 'was identified as the driver who had failed to remain at the scene of an accident, and was also charged with this offence. The grievor was held overnight by the police prior to being released. He had' to be .physically placed in a cell by Constable David Hqssack, who testified that the grievor was verbally abusive to him. Constable Hossack further testified that from another room he could later hear the grievor shouting and banging on the bars of his 'cell. Constable Hossack was in criminal court in April, 1987 ,when the grievor pleaded guilty to the- failing to remain charge. According to Constable Hossack, the- grievor's. lawyer advised the Court that the grievor had an alcohol problem for which he was seeking treatment. Mr. McFarlane was advised by~the Barrie police of the criminal charges against the grievor. He wrote .to the grievor on July 18, 1986. In his letter Mr. McFarlane noted that the grievor had been absent 9.25 days so far in 1986 and late 5 times. He also stated that the grievor had been spoken: to by the deputy and assistant superintendant of the jail as to whether he required any assistance, and that the grievor had denied having any problems. Mr. McFarlane went on to advise the grie<or that due to his attendanc~e and punctuality problems as well as the fact he had been charged with being intoxicated in a public place, he intended to start the process whereby the grievor would be referred to an alcohol treatment program; . . - -6- . I ion July 28, 1986, Mr. D.A. Parker, Regional Director of the Ministry of Correctional Services, wrote the grievor and advised him that he w\as being referred for a mandatory medical assessment. Part of Mr. Parker's letter read as follows: This is not a disciplinary action but an attempt to.help you overcome the problems you are experiencing. However, unless you are prepared to co-operate fully with the'assess,ment, and subsequent procedures it may become necessary to recommend your separation from' this Ministry if you become unable to.effectively carry out your responsibilities. In other words,.it is essential you establish and maintain an acceptable attendance and punctuality record. On September 5, 1986 the grievor, at the employer's directibn, was examined by Dr. T. Rewa of the Government's employee health service. During this examination, the grievor advised Dr. Rewa that he had begun drinking in 1984 at a times when he had a personal problem. He indicated, however, that he had continued to consume ,an average of 8 to 10 beers twice'.a week, most recently on August 27th when he had consumed 10 drinks. In ~connection with the grievor's medical examination Dr. Rewa had certain laboratory tests performed. Dr. Rewa described the test results being "compatible with toxic effect of alcohol on his lever functions". Dr. Rewa referred the grievor to a program at the Addiction Research Foundation. The employer acknowledges that the referral was mandatory, and that 'the .grievor did not have the option of refusing to attend. , ,, -7- , The program to which the grievor was referred has a three week intensive phase as well as a one year aftercare phase. The intensive phase involves attendance~ on a full time basis. The grievor attended and successfully completed this phase of the program. The aftercare phase involves monthly meetings with a therapist designed to prevent relapses and to cope with any relapses that do occur. The therapist assigned to deal with the aftercare phase of the grievor's treatment program was Mr. William Robb. Mr. Robb~ testified that the grievor neither participated in the aftercare phase of the programnor advised him of any. reason why he could not do so. The.grievor completed the intensive phase of the Addiction Research Foundation program on October 24, 1986. On November 15, 1986 the Barrie jail sponsored a tournament attended by teams from various correctional institutions. The tournament was held at -a local country club, and liquor was available. The grievor attended and consumed sufficient quantities ~of liquor to become intoxicated. December 3,~ 1986 had originally been scheduled as a work day for the grievor. The grievor, however, entered pinto an arrangement with Mr.~ Norm Walker, another correctional officer., by which Mr. Walker would work December 3rd in exchange for the grievor working Mr. Walker's shift on December 7, 1986. The employer does not object to such arrangements, but the understanding is that if a correctional officer who has agreed to work someone else's shift becomes ill and cannot do so, he is responsible for arranging to have another officer -8- cover the sh.ift. Because he had changed shifts with Mr. Walker, the grievor was not required to work December 3rd. Between 4:30 and 5:00 p.m.-~that day Mr. McFarlane, on returning to Barrie from- a trip to Toronto, stopped off at a local tavern. The grievor was in the tavern spitting at the bar, with a friend. Mr. McFarlane described the grievor .as being loud, noisy and intoxicated- Mr. McFarlane observed the grievor knock over his friend's'drink. 'The following two days, namely December ~4 and 5, 1986 were days off for the grievor. He called in sick December 6, 7, 8 and 9. .The grievor subsequently provided the employer with a note from Dr. Aikins : saying that he had been ill on these days. The note did not, however, identify the nature or cause of the illness.. It will be recalled .that the grievor had agreed to work the December 7th shift for Mr. Walker. Not only did the grievor'not do so, but replacement. The grievor was away from between January l'and December 10, 1986. however, were. connected with his mandi attendance ate the Add i ction Research Foundation. We agree with.union counsel that it would be inappropriate to count these days as absences in the normal sense. Discounting the days in question he was away he failed to~arrange for a work a total of 36.75 days Seventeen of these absences, tory medical referral and 19.75 days. The average absenteeism rate for correctional officers at the jail in 1986 was 11.67 days. In comparing the grievor's absences with the average absenteeism rate .for all correctional officers, however, it must be kept in mind that the grievor was scheduled to work fewer days than other officers in 1986 due to the. three week period that he was at the Addiction Research Foundation as-well as the fact that he was discharged early in December. . ; -9- The grievor was discharged on December 10, 1986. Mr. McFarlane testified that, his.decision to discharge the grievor was based.on his absences from work in 1984, 1985 and 1986, .the facts that he had been charged with analcohol-related offence in June 1986 as well as his failure ~to have someone cover Mr. Walker's shift. When being cross-examined by union counsel, Mr. McFarlane agreed' that one consideration in his decision to discharge the grievor was the'absence of any improvement in his attendance. In fact, however, the grievor's absences did decline from 45,.5 absences in 1984, to 26 absences in 1985 and, 19.75 absences in 1986. Even accounting for. the approximately one and a half months that the grievor was not scheduled to work in 1986, his 1986 absenteeism rate did reflect an improvement over 1985. Both parties agree 'that this is a. case involving innocent absenteeism. They acknowledge that it would,have been inappropriate for the employer to.discipline the grievor because he missed time from~ work? They also agree'that the case law supports,the proposition that it is open for an employer to terminate an employee who is incapable of regular attendance. In order to do so, however, the employer must be able to demonstrate that the employee's past record of absenteeism was excessive, and the probabilities are that the employee's attendance,will not improve to an acceptable level in the future. The union contends that the employer must, in addition,. establish that - 10 - I there was a "culminating incident" such as to justify the 'employer even considering the grievor's attendance record. The jurisprudence of this Board supports the Union's contention that a culminating incident is necessary to invoke a record of absenteeism in order to justify discharge. See, in particular, Re - Greeven 67184 (Verity), application for judicial review -dismissed February 13, 1~986. The Board has“also held, however, that in the' context of an innocent absenteeism case a culminating incident can be any occasion where it is proper and appropriate for the employer to, assess the employee's attendance record and health. In this regard, the Board has in a number of cases adopted the following reasoning in Re Victoria Hospital, London and London and District Building Service' Worker's Union Local 220 (1979) 24 L.A.C. (2d) 172 (Weatherill). In cases of "innocent absenteeism", where the employer is contemplating .the termination or interruption of an employee's employment; there must, we think, be some proper and appropriate occasion for.it to consider and acton that possibility. The "culminating incident" need not necessarily be an actual instance of absence,from work, in our view. It might arise, perhaps, upon the receipt of some medical advice bearing on the employee's condition even though the condition may not yethave led to the employee's absence from work. In discioline cases the "culminating incident" must in itself be grounds fur discipline, and it then constitutes the occasion for considering the record that is, for taking a general view of the employee. In cases of "innocent absenteeism", what is required is that there be some proper and appropriate occasion for assessing the employee's attendance and health, and for considering the question of whether or not the employee can give reasonable attendance in the future. . - 11 - In the instant case, the grievor's record was considered on December 10, 1986. He had already been absent four days that month. During the preceeding week, the grievor had~ been seen .by Mr. McFarlane in an intoxicated state. This was the second such occasion subsequent to the grievor leaving the Addiction Research Foundation program. Given these circumstances, we believe.it was appropriate for the employer to consider the grievor's overall attendance record as well as the likelihood of his being-able to attend on a.regular basis in. the future. Given the extended period of time during which the grievor experienced attendanceproblems, we are further satisfied that his record of absenteeism'was, in fact, excessive. The union relies on the fact that under cross-examination Mr. McFarlane acknowledged that in 1986 several correctional officers at the Barrie jail had worse attendance records.than the grievor. With one exception, however, there is nothing in the evidence to indicate that these officers had a pattern of poor attendance over a number of years. The exception involved an officer.who had a worse attendance record than the grievor over the previous three years. Mr. McFarlane testified that the absences of the officer in question were the result of his being iu a'deep depression caused by a tragic family circumstance. The officer's wife had been murdered by hisson. To make matters worse, the son was being hel'd a prisoner in the Barrie jail, the very place the officer was required to report for work. Mr. McFarlane testified that in 1986 he required the officer to see a psychiatrist. Subsequent to this officer's attendance improved to the point where, in .1987, he was described as having an."excellent" . - 12 - attendance record. We believe the facts relating to the other,officer to be distinguishable and not of any assistance in these proceedings. Certainly the grievor. can gain no benefit from the fact that the employer did not see fit to discharge the officer in question. The union contends that because the grievor's absences decreased from a' high in 1984 it is reasonable to infer that this attendance record will improve to an acceptable level. While in other fact situations this might be an attractive argument, we do not find it per~suasive in the instant case. In pecember, 1986,.inunediately prior to his 'termination, the grievor's attendance seriously deteriorated. Further, while the members of this panel do not purport to be experts in the field of alcohol addiction, the evidince indicating~ that the grievor has an alcohol problem is overwhelming~. Laboratory tests were compatible with the toxic effect of alcohol on his liver fun&ions. The grievor's conduct in fleeing the scene of an accident in 1986 as well as yelling and banging on his cell bars when incustody suggests a marked change in personality an6 behaviour .from 1984 when he risked his own safety to capture an escapee. At the grievor's criminal trial, in April 1987, his own lawyer advised the Court he had an alcohol problem. Even after his three weeks at the Addiction Research ~ . - 13 - Foundation, the grievor was twice seen in an intoxicated state. The grievor denies he has a drinking problem. on any fair assessment of the evidence, however, it is clear that he does. Union counsel contends that the grievor's conduct outside' of working hours is irrelevant to these proceedings, even if it indicates that at times he drinks too much. In other circumstances we would agree. As a general rule an employee's conduct on his own time is' of no concern to an employer. This is true even of an employee who drinks to excess, provided the drinkin,g does not adversely impact on his job performance or attendance at work. Dr. Rewa testified. that one result of excessive alcohol intake is absenteeism from works. Given the absence of any medical or other evidence to.the contrary, it is reasonable to infer .that the grievor's on-going absenteeism problem was related to his difficulties with alcohol. That makes the grievor's alcohol consumption outside of working hours a relevant consideration to the employer and to this aboard. In other cases involving employees who have been discharged due to alcohol related absenteeism, the union has lead evidence to demonstrate that the discharged employee has both recognised his drinking problem, and. taken meaningful steps ,to correct it. Such evidence goes directly to the question of the likelihood that the employee will be able to attend on a regular basis in the future. In such cases, other panels of this Board have directed that the employee -‘14 - be reinstated.'on a conditional basis. See,' for example, Rupert 372/84 (Gorsky.). This case, however, is quite different. Although the grievor's lawyer in criminal court stated that the grievor was seeking help for his drinking problem, there is no evidence before us that he has ,actually obtained such help. Indeed, to the contrary throughout these proceedings the grievor through union counsel denied having $ drinking problem. Unless the grievor recognises he has a problem, it is highly unlikely that he will take any corrective action. In the result, absent a change in the.grievor's attitude, the prognosis with respect to his ability to attend work on a regular baeis in the future is not encouraging~. We are not, however, satisfied that this is a case where it is appropriate to simply,uphold the grievor's discharge.. He has some 10 years service, and, when at work,. has been an excellent employee. Hopefully, these proceedings and this decision will-shock the grievor into facing the reality of his situation and taking appropriate action. It is doubtless similar considerations which led the employer to indicate in its reply to the grievance that it was prepared to grant the grievance subject to certain conditions. At the hearing the employer ,again indicated that an alternative to upholding the grievor’s discharge would be to reinstate him. on a conditional basis . provided one of the conditions be' that he take meaningful steps to deal with his drinking problem., We are agreeable with this approach. The employer proposes that the grievor be required to attend a treatment program selected by the Board. The Board, however, is not in a position to select such a program. Among other considerations, we are not aware of what programs would accept the grievor. While the evidence indicates that the program offered by.the Addiction Research Foundation is a worthwhile one with a relatively high degree of success, Mr. Robb testified that readmission to the program for those who have suffered a relapse is not automatic, and that one of the factors taken into account is whether the individual demonstrated a "significant effort'! ,during the aftercare phase of the program. It is, accordingly, quite possible that the Addiction Research Foundation may not be prepared to readmit the grievor into its.program. Mr. Robb indicated, however, that a number of other institutions ale.6 conduct worthwhile programs. We propose to leave it to the parties to mutually agree on a program that will accept the grievor. If for some reason the parties cannot agree on a program, the Board will then deal with the matter:'As a condition of 'his reinstatement, the grievor is to meet all of the requirements of the program selected, including any on-going aftercare program. The employer requests that as a condition of reinstatement the grievor be required to refrain from the consumption of any alcohol. We are not, however, in a position to decide whether total abstinence is necessary for the successful rehabilitation of the grievor. ,i - 16 -. d Accordingly, we are not prepared to make this a condition of reinstatement. We note that if such a condition .is felt to be warranted~ by those responsible for the grievor's treatment program, they will be able to make ,it a requirement of the program. The employer also requests that the grievor. submit medical certificates for all of his absences and that he meet the average attendance level of correctional officers at the Barrie jail. We are in agreement with these conditions, but only for an eighteen month period. Accordingly, we make the following order: (1 (2 (3 (4 ) The grievor is to be conditionally reinstated, without compensation, into his position as.a correctional officer of the Barrie jail. The conditional relnstatement will be effective the day the grievor commences an agreed-to'alcohol treatment program. There shall be no loss of seniority benefits resulting from the grievor's dismissal. The.grievor is'to meet all of the requirements of the relevant alcohol treatment program. The grievor is to co-operate in allowing the employer to receive monthly reports indicating whether or not he is meeting the requirements of the program. Upon reinstatement, the grievor shall not incur an absenteeism record that exceeds the average absenteeism of all correctional officers in similar circumstances at the ,Barrie jail during the first eighteen months of his employment. During the eighteen month period, the grievor shall provide proper medical certificates for all absences due to‘medical reasons, which shall specify the medical reason for all such absences. .a .* . 3: -17- , Should the grievor satisfy the condit i ons set out above for an eighteen month period, his reinstateme n t will no longer .be conditional. We will remain seized of this matter should any questions ar,ise with respect to the implementatioti of this award. Dated at TORONTO this 25tbday of February,l988. L-h I.C. Springate - .Vice-Chairman I. Freedman - MembPr ‘Q&&# L.R. Tuttle - Member I