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HomeMy WebLinkAbout1994-1322.Pluska.96-04-15,’ ONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD EMPloYis DE LA COURONNE DE L’ONTARIO COMMISSION REGLEMENT DES GRIEFS If30 DUNDAS STREET WEST; SUlTE 2100, TORONTO ON M5G lZ8 100, RUE DUNOAS OLJES’I; BUREAU 2100, TORONTO (ON) M5G lZ8 .1 DE TELEPHONE/T&L~PHONE : (416) 326- 1388 FACSIMILEIT~L~C~PIE : (416) 326- 1396 GSB # 1322/94 OLBEU # OLB206/94 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Pluska) - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Grievor Employer BEFORE: R.J. Roberts Vice-Chairperson FOR THE GRIEVOR J. Noble Counsel Ontario Liquor Boards,Employees' Union FOR THE EMPLOYER M. Gage Counsel Liquor Control Board of Ontario HEARING March 26, 29, 1996 INTERIM AWARD I. At the outset of the hearing in the present arbitration, counsel for the union indicated that the case for the grievor would be founded, at least in part, upon post-termination evidence of rehabilitation from an alcoholism problem. Counsel for the employer then entered a preliminary objection to jurisdiction. It was submitted that the recent decision of the Supreme Court of Canada in Conpagnie Mike Quebec Cavtier v. Metallurgistes Unis DIAmerique, Local 6869 (1995), 95 C L L C 141,253 (S. C. C.) (Carrier) effectively forbade the admission of post-termination evidence of rehabilitation. By agreement between the parties, we proceeded to hear evidence from a witness for the employer, Mr. Nick Virdo, and at the conclusion of his evidence we turned to hear argument upon the preliminary objection. For reasons which follow, I have decided to dismiss the preliminary objection to the following extent: the post-termination evidence of rehabilitation will be admitted; however, at the conclusion of the evidence upon the merits I Lvill entertain argument regarding the extent to which the post-termination evidence of rehabilitation should be relied upon in my award. I anticipate that this argument will address, inter nlia, the question whether a 2 termination for innocent absenteeism due to alcoholism may be treated under the Crown Employees’ Collective Bargaining Act as if it were a matter sounding in discipline. II. According to Mr. Virdo, a Human Resource Advisor with the employer, the grievor’s attendance was below average in 1993 and very below average in 1994. Many of her absences were supported by medical documentation indicating that they were due to anxiety and depression. When the employer requested the grievor to consent to have her physicians release more detailed medical information to it, however, the grievor declined. This occurred on more than one occasion. Finally, when the grievor failed to return to work as expected in August, 1994 after an absence of more than four months, the employer decided to terminate her for innocent absenteeism. On August 3 1, 1994, the employer sent the grievor the following letter: Ms. Jeanne Pluska 18.55 Maple Ridge Drive Apt. # 42, Mississauga, Ontario L4W 2N7 This is a follow up to Mr. Kaladeen’s letter of August 15th: 1994, which directed 3 you to either report to work or provide supporting medical information by August 29th, 1994. The purpose of the August 15th, letter was to draw to your attention the seriousness of the situation and hopefully obtain medical information regarding your current status. I have reviewed your letter dated August 25th, 1994, and it appears that you have made little attempt to comply with the above request for medical information. We have made numerous attempts to confirm your status, in order to determine our ability to accommodate your situation. Your attendance continues to decline with no evidence of any future improvement. You have been made aware of your deteriorating attendance problem on numerous occasions over the past two years. This included many discussions and letters from your supervisors as well as the Attendance Review Committee. Based on the information which we have available, we must conclude that . . . [there] is no reasonable prospect that you will be able to attend work on a regular basis in the foreseeable future. As a result of all of the above, your employment with the L C B 0 is being terminated effective August 29th, 1994. Yours truly, (Signature) J. P. Nestor Director, Traffic & Customs The employer apparently was unaware until after termination that alcoholism played a role in causing the absenteeism of the grievor. There seems to be little doubt that the refusal of the grievor to comply with the employer’s repeated requests for more detailed medical information had kept this aspect of her problem out of the employer’s hands. For purposes of the preliminary objection, however, the employer did not dispute that alcoholism probably was the root cause of 4 the grievor’s absences. III. Counsel for the employer submitted that even if alcoholism played a pivotal role in causing the grievor’s absences, the decision of the Supreme Court of Canada in Cartier stood for the proposition that it was beyond my jurisdiction to admit post-termination evidence of rehabilitation. According to counsel for the employer, in Cartier the Supreme Court found that once an arbitrator concluded that at the time of dismissal the employer had just cause to dismiss, the arbitrator’s jurisdiction was exhausted. The arbitrator would exceed his or her jurisdiction if he or she attempted to go on to determine whether to substitute a lesser penalty based upon, inter alia, post-termination evidence of rehabilitation. Counsel for the union, on the other hand, submitted that Cartier was inapplicable. Cartier, it was submitted, was limited in application to matters governed by the Quebec Labour Code, which did not expressly authorize arbitrators to substitute a lesser pepalty for a “just cause” dismissal. The Ontario Labour Relations Act (OLRA) and the Crown Employees’ Collective Bargaining Act (CECBA), it was submitted, expressly authorized arbitrators to substitute for a “just cause” dismissal “such other penalty as . . . seems just and reasonable in the circumstances.” (OLRA, s. 48( 17); CECBA, s. 19(3).) Under a long line of authority, it was submitted: the “circumstances” to be considered in determining whether to substitute a lesser penalty included post-termination evidence of rehabilitation. 5 IV. _- In Cartier, an arbitrator ordered the reinstatement of an employee who had been terminated for excessive absenteeism due to alcoholism. Prior to dismissing the employee, the employer had met his absences with disciplinary sanctions. Many of these sanctions were subsequently reduced in exchange for promises by the employee to seek treatment for his alcohol problem. After reneging on these promises and once again becoming absent due to his alcohol problem, the employee was dismissed. He then grieved under article 10.0 1 of the collective agreement that “he was not dismissed for just and sufficient cause. ” The arbitrator concluded that the employer had ‘just and sufficient cause” to dismiss the grievor at the time when he was dismissed; however, because the grievor had successfully undergone an alcohol treatment program between the time of his dismissal and the arbitration, the arbitrator reinstated the grievor on a last-chance basis. The employer sought judicial review. In the Quebec Superior Court, the decision of the arbitrator was quashed; however, a majority of a three-judge panel of the Quebec Coul3 of Appeal reversed and restored the arbitrator’s decision. In his reasons for judgment in the Court of Appeal, Moisin, J. A., noted that alcoholism was properly regarded as an illness and as a result, absenteeism due to alcoholism had to be treated as innocent absenteeism. As such, reviewing a dismissal for absenteeism due to alcoholism not o.nly involved determining whether the grievor’s alcoholism impaired his ability to be a regular attender, but also whether he was likely to become a regular attender in the foreseeable future. 6 The employer appealed to the Supreme Court of Canada. The Supreme Court of Canadareversed, setting aside the decision of the Court of Appeal and restoring the decision of the Quebec Superior Court. Speaking for a unanimous court, L’Hereux- Dube J. said, in pertinent part: [Ulltimately, the arbitrator’s jurisdiction [under article 10.01 of the collective agreement] is limited in that he is required to address the specific issue before him: whether or not the decision to dismiss the employee in question was justified. In particular, the arbitrator is required to determine whether or not the Company had just and sufficient cause for dismissing the employee as at the time when the employee was actually dismissed. As a general rule, an arbitrator reviewing a decision by the Company to dismiss an employee should uphold the dismissal where he is satisfied that the Company had just and sufficient cause for dismissing the employee at the time that it did so. . . . The peculiarities of alcoholism do not justify departing from this rule. . . . [The innocent absenteeism analysis of Moisin, J. in the Court of Appeal], if performed as at the time the employee was dismissed, is reasonable and is entirely within the jurisdiction of the arbitrator. . . . In my view, an arbitrator can rely on . . . [subsequent-event evidence], but only where it is relevant to the issue before him. In other words, such evidence will only be admissible if it helps to s hed light on the reasonableness and appropriateness of the dismissal .,. at the time that it was implemented. Accordingly, once an arbitrator concludes that a decision by the Company to dismiss an employee was justified at the time that it was made, he . . . would be exceeding his jurisdiction if he relied on subsequent-event evidence as grounds for annuling the dismissal. . . . Id. at paras. 1 l-1 3 (emphasis in original). L’Hereux-Dube J. gave two policy reasons for limiting the jurisdiction of arbitrators to determining whether there was just cause for dismissal as of the time of dismissal. These were as follows: (1) “To hold otherwise would be to accept that the result of a grievance concerning the dismissal of an employee could vary depending on when it is filed and the time lag between the initial filing and, the final hearing by the arbitrator”, id. at para. 13; and, 7 (2) Allowing subsequent-event evidence to be considered “would lead to the absurd conclusion that a decision by the Company to dismiss an alcoholic employee could-be overturned whenever that employee, as a result of the shock of being dismissed, decides to rehabilitate himself, even if such rehabilitation would never have occurred absent the decision to dismiss the employee”, id. Then, summarizing her decision, L’Hereux-Dube J. stated, ” There is no provision in Quebec labour law or in the collective agreement . . . which would permit a labour arbitrator to overturn a decision by the Company to dismiss an employee notwithstanding the fact that the Company demonstrated just cause for the dismissal.” Id. at para. 14. V. The observation by the learned Justice that Quebec labour law did not permit a labour arbitrator to overturn a “just cause” dismissal might have startled some labour law commentators in the province of Quebec. Section 100.12(f) ofthe Quebec Labour Code, 1977, c.41, s.48; 1983, c.22, s.74, had previously been thought to grant arbitrators this jurisdiction. For example, in R. P. Gagnon, Le Droit du Travail du Quebec : Practiques et Theories (2e Edition) (Yvon Blais Inc.), the author said: Under section 100.12 (f) now in effect, the arbitrator may clearly assess the penalty with respect to fault, taking into account all the circumstances of the case, and consequently confirm, revise or reverse the employer’s decision. The arbitrators may substitute his own decision “that seems just and reasonable” according to the circumstances of the case. . . . Id. at 46 1 (English translation). A similar observation was made by the learned authors of Brown and Beatty, Canadian Labour 8 Arbitration (3rd edition). This text stated, in pertinent part, “[A]11 the applicable Labor Relations Acts now include a provision granting the arbitrator power to substitute some penalty other than +- that invoked by the employer. ” ld. at 7: 1300. The Quebec Labour Code was one of the acts cited in support of this statement. Still, section 100.12 (f) of the Quebec Labour Code is considerably more vague in this area than the Ontario Labor Relations Act. It provides as follows: 100.12 In the exercise of his duties the arbitrator may... (f) in disciplinary matters, confirm, amend or set aside the decision of the employer and, if such is the case, substitute therefor the decision he deems fair and reasonable, taking into account the circumstances concerning the matter. . . . As can be seen, this provision does not expressly state that the arbitrator may set aside a dismissal for just cause. Perhaps this is what convinced L’Hereux-Dube J. that there was no provision in Quebec labour law to permit an arbitrator to overturn a “just cause” dismissal. The Ontario Labour Relations Act leaves no doubt that arbitrators have this jurisdiction. It provides, in pertinent part: 48 (17) Substitution of penalty. --- Where an arbitrator or arbitration board determines that an employee has been discharged . . . by an employer for cause . . . the arbitrator or arbitration board may substitute such other penalty for the discharge . . . as to the arbitrator or arbitration board seems just and reasonable in all the circumstances. . . . Arbitrators are expressly authorized to substitute another penalty for discharge -- even where the 9 discharge was for cause -- if the substitution of penalty seems just and reasonable in the circumstances. The sweeping manner in which this power is expressed has been taken to mean that the circumstances to be asieised by the arbitrator include post-termination evidence of rehabilitation. See, e.g., the comments of arbitrator 0. B. Shime in Re Canada Post Corp. and Canadian Union of Postal Workers (1995), Unpublished Award, at 7. The equivalent wording of the Crown Employees’ Collective Bargaining Act (CECBA) has been held to grant the Grievance Settlement Board the same sweeping powers as those granted under the Ontario Labour Relations Act. Section 19 (3) of CECBA reads as follows: 19 (3) Where the Grievance Settlement Board determines that a disciplinary penalty or dismissal of an employee is excessive, it may substitute such other penalty for the discipline or dismissal as it considers just and reasonable in all the circumstances. . . . In Ministry of Community and Social Services v. Ontario Public Service Employees Union, (1992), 11 0. R. (3d) 558 (Ont. C. A.), the Ontario Court of Appeal concluded that under the above provision the Grievance Settlement Board had jurisdiction to determine if the penalty of dismissal was excessive even where just cause for dismissal existed. See also, Re the Queen in Right of Ontario and Grievance Settlement Board (1980), 107 D. L. R. (3rd) 598 (Ont. Div. Ct.). which reached the same conclusion. 10 VI. -- From the foregoing review of the Ontario Labor Relations Act and the Crown Employees’ Collective Bargaining Act, it seems evident that where dismissal is imposed in the form of a disciplinary penalty, an Ontario arbitrator or the Grievance Settlement Board has statutory jurisdiction to substitute a lesser penalty for a “just cause” dismissal if in all the circumstances it appears just and reasonable to do so. The circumstances to be assessed by the arbitrator include post-termination evidence of rehabilitation. So, for example, in Re Canada Post, supra, in which the grievor was dismissed for theft, it was held that under s. 60(2) of the Canada Labour Code, which was identical to section 48 (17) of the Ontario Labor Relations Act, post-termination evidence of recovery from a gambling addiction was admissible. The reasons of the Supreme Court of Canada in Cartier did not apply, it was concluded, because the arbitrator had statutory authority to substitute a lesser penalty for a “just cause” disciplinary dismissal. The situation is not so clear when it comes to non-disciplinary dismissal for absenteeism due to alcoholism. The cases that were brought to my attention have gone both ways. In Re Communications, Energy and Paperworkers Union of Canada and Bell Canada ( 1993, Unpublished Award (Devlin), the arbitrator treated a case of innocent absenteeism due to 2 alcoholism as if it were governed by the same provision of the Canada Labour Code that Arbitrator Shime applied to a disciplinary dismissal in Canada Post, supra. See Bell at 13, 17. On the other hand, in Re Case Corp. and United Steelworkers of America, Local Union No. 2868 11 (1 bf6), Unpublished Award (H. D. Brown), the arbitrator concluded that section 48 (17) of the Ontario Labor Relations Act did not apply to shield a non-disciplinary dismissal for absenteeism due to alcoholism from the decision of the Supreme Court of Canada in Cm-tier. The statutory authority found in Section 48 (17) of the Act, Arbitrator Brown said, solely applied to cases of mitigation of a disciplinary penalty. See id. at 14-15. It did not apply to dismissal for innocent absenteeism. Since dismissals for innocent absenteeism were not shielded by statutory authority, Arbitrator Brown concluded, the reasons of the Supreme Court in Cartier applied to prevent arbitrators from overturning these dismissals upon the basis of “post-discharge evidence of improvements in medical conditions of employees as well as their rehabilitative efforts.” Id. at 13. Arbitrators were restricted to evaluating ” just cause” for dismissals for innocent absenteeism due to alcoholism upon the evidence before the employer at the time of the decision to dismiss. See id. at 16-17. VII. It seems undeniable that there is reason to interpret the statutov shield of section 48 (17) of the Ontario Labor Relations Act -- and its parallels in the Crown Employees’ Collective Bargaining Act and the Canada Labour Code -- as restricted to mitigating disciplinary penalties, including 12 disciplinary dismissals. These provisions have been generally regarded as remedial legislation responding to a decision of the Supreme Court of Canada in Port Arthur Shipbuilding Co. v. -- Arthurs, [I9691 S.C.R. 85, 70 D.L.R. (2d) 693 (S.C.C.). In that case, the Supreme Court concluded that a board of arbitration had exceeded its jurisdiction when it substituted a lesser penalty for a disciplinary dismissal. Referring to the management rights clause in the collective agreement, the Court concluded that the task of the board was to determine whether the company had proper cause for discipline. The board was not entitled to go further and determine whether, having proper cause, the company should have exercised its power to dismiss the grievors. See the discussions of Port Arthur Shipbuilding in Re the Queen and Grievance Settlement Board, supra, at 602-3; and, Canada Post, supra, at 6. There seems to be little doubt that the purpose of section 48 (17) of the Act and its parallels in CECBA and the Canada Labour Code was to statutorily reverse the decision in Port Arthur Shipbuilding by ensuring that arbitrators and boards of arbitration possessed the power to mitigate disciplinary penalties. It may well be, then, that dismissals for innocent absenteeism are not protected from the reach of Cartier by any shield of statutory authority. In this event, once an arbitrator concludes that at the time of dismissal the employer had just cause to dismiss for innocent absenteeism, the arbitrator’s jurisdiction will be exhausted. The arbitrator will exceed his or her jurisdiction if he or she attempts to go on to determine whether to reinstate the grievor to employment based upon, inter alia, post-termination evidence of rehabilitation. At the moment, however, I am not prepared to make a definitive ruling upon the point. This aspect of the case was not fully explored in oral argument. There may be some authority other than the statutory authority to 13 which 1 have been referred to shield innocent absenteeism cases from these effects. -- VIII. Even more troubling is the enigmatic nature of dismissals for absenteeism due to alcoholism. Alcoholism has been characterized as a disease of the will. It can only be conquered by exercise of the willpower of the victim. Because of this, absenteeism due to alcoholism stands at the borderline between culpable and non-culpable behavior. The former attracts discipline; the latter does not. The cases reflect this enigma. In Cartier, the employer responded with discipline to absenteeism due to alcoholism. When the case went to the Quebec Court of Appeal, however, Moisin, J. A. indicated that he preferred to treat it as a non-disciplinary innocent absenteeism case because alcoholism was properly regarded as an illness. In the Supreme Court of Canada, L’I-Iereux-Dube J. indicated that she was indifferent to whether absenteeism due to alcoholism was treated as a disciplinary or non-disciplinary matter, so long as just cause to dismiss was assessed as of the time of dismissal. See id, at para. 13. Similarly: in Bell Canada, the employer responded with discipline to the absenteeism of the grievor due to her alcoholism. See id. at l-6. The arbitrator, however, chose to treat the matter as a non-disciplinary dismissal for innocent absenteeism, thus permitting her to consider “the past record of absenteeism and the likelihood of regular attendance in the future.” Id. at 13. At the 14 same time, the arbitrator invoked the substitution-of-penalty provisions of s. 60(2) of the Canada Labour Code to justify considering post-termination evidence of rehabilitation. Id. at 16-17. _- All of this raises the question whether dismissals for absenteeism due to alcoholism might properly be considered to be disciplinary in nature for purposes of invoking the shield of statutory authorization under section 19(3) of the Crown Employees’ Collective Bargaining Act or its equivalents in the Ontario Labour Relations Act and the Canada Labour Code. This is a difficult question. The enigmatic nature of absenteeism due to alcoholism might tend to tip the balance in favor of making this characterization. So might the apparent absurdity of applying the shield of statutory authorization to reinstate a rehabilitated employee who was dismissed for theft caused by a gambling addiction or alcoholism but not to one who was dismissed for absenteeism due to alcoholism. At the same time, I am aware that the policy reasons set forth by L’Hereux-Dube J. in support of her decision in Cartier might tend to tip the balance the other way. It will be recalled that these policy reasons essentially were: (1) To prevent the result of a dismissal grievance from varying according to the time lag between grievance and arbitration; and, (2) to prevent the dismissal of an alcoholic employee from being overturned simply because the shock of dismissal was the only thing that induced the employee to rehabilitate himself. See id. at para. 13. 15 -- IX. I am not, however, prepared at the moment to make a ruling upon the above issue. The issue was merely touched upon in the submissions of counsel upon the preliminary objection. It seems to me that the more prudent course to follow would be to admit the post-termination evidence of rehabilitation and reserve until argument upon the merits the question of the degree, if any, to which the post- termination evidence of rehabilitation should be relied upon in my award. To this extent, the preliminary objection is dismissed. Dated at Toronto, Ontario, this 15 day of April, 1996. .,Jack Roberts, Vice Chair ’ ,: ! ,: ,*i ;”