HomeMy WebLinkAboutPride 05-06-08
IN THE MATTER OF AN ARBITRATION
BETWEEN:
KENORA ASSOCIATION FOR COMMUNITY LIVING
("the employer")
and
ONT ARlO PUBLIC SERVICE EMPLOYEES UNION
ON BEHALF OF ITS LOCAL 702
("the union")
AND IN THE MATTER OF GRIEVANCES OF MR. DAVID PRIDE
ARBITRA TOR:
Ian Springate
APPEARAN CES:
For the Employer:
Fred Bickford, Counsel
James Retson, Executive Director
For the Union:
Jim Gilbert, Grievance Officer
Allison Cartwright, Steward
HEARING: In Kenora on October 13, 14; November 8, 9, 23, 24;
December 1, 2004; February 16,2005
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AWARD
INTRODUCTION
In October 2003 the police raided the grievor's farm near Kenora. They
discovered a substantial amount of marijuana in circumstances which indicated
that he was conducting a grow operation. The grievor was charged with
possession of marijuana for the purpose of trafficking. After this was reported in
the local press the employer suspended him from his position as a Community
Support Worker. The grievor subsequently pled guilty to the charge of producing
a controlled substance and was discharged. The grievor filed separate grievances
challenging his suspension and his discharge.
This award was not issued within the time period provided for in section 48
of the Labour Relations Act. Accordingly, as permitted by that section, the time
period is hereby extended to encompass the release of this award.
THE EMPLOYER
The employer provides support services to a number of vulnerable
individuals in the Kenora area. These include persons who are developmentally
handicapped, individuals who are severely mentally ill, seniors with dementia or
Alzheimer's disease and children with special needs. During the hearing clients
were at times referred to as consumers or survivors. For ease of reference I
propose to refer to all those who receive services from the employer as clients.
The employer's goal is to integrate its clients into the community as much as
reasonably possible. It has achieved considerable success in this regard. There
were a number of references in the evidence to clients obtaining employment,
attending social and athletic events and otherwise being physically out in the
community .
The employer encourages family members of clients to be actively involved
with its activities. There is a strong tradition of family members looking out for
the interests of all clients, including those without any local family members.
Mr. James Retson has been Executive Director of the employer since 1984.
From 1974 to 1982 he was a practicing member of the Nova Scotia bar. He
completed an MBA degree at Dalhousie University prior to taking on his position
with the employer. The evidence establishes that Mr. Retson has consistently
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sought to promote the interests of clients and to motivate staff to do likewise. He
has tried to ensure that clients are provided with a safe and secure environment and
are not abused or taken advantage of.
The employer operates facilities that serve as residences for clients. The
grievor was one of several staff members employed at one of these residences. As
of October 2003 the residence housed three developmentally disabled individuals.
The evidence suggests that except for them possibly noticing that the grievor was
no longer at the residence none of them would have been aware of his suspension
or discharge or would have been able to understand the issues involved.
THE GRIEVOR'S EMPLOYMENT RECORD
The grievor did not testify in these proceedings. In his opening statement
the advocate for the union made a number of assertions regarding the grievor's
conduct that were not later established in evidence. I have not given those
assertions any weight.
The employer hired the grievor in December 1990 as a Relief Community
Support Worker. The grievor left the employer in May 1991 but in December
1992 was rehired back into his former position. He became a full-time Community
Support Worker in October 1993.
Ms. Karen Tio was the grievor's supervisor for about one and a half years
prior to November 1993. Ms. Tio testified that the grievor worked well with
clients and his interactions with them had been positive. She said that he had
arranged jobs in the community for two clients. She also said that he would stay
on past his scheduled finishing time and had been willing to work extra shifts.
The grievor's favourable work performance in 1992 and 1993 did not
continue. His employment record indicates that in November 1995 he failed to
show up for a scheduled shift. Later that same month he was late for a meeting
and as a result was given a written reprimand. The following month he failed to
attend a scheduled staff meeting. He was originally issued a reprimand for this but
the reprimand was subsequently withdrawn.
In February 1996 the grievor was removed from the task of looking after a
client's finances because of the poor job he was doing. Later that same month he
was given a two-day suspension for arriving at work ten minutes late. In June
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1996 he was given a verbal warning for borrowing $12 from a client's funds and
another verbal warning for failing to record a transaction in a spending ledger.
That same month he was given a written reprimand for negligence and poor
supervision of a client.
Management held a coaching session with the grievor on June 14, 1996.
One of those in attendance was Supervisor Mr. Bryan Booth. In a memorandum
he prepared following the coaching session Mr. Booth said that Ms. Michelle
Marcus had found the grievor difficult to supervise because he refused to hand in
written reports and was unable to account for his activities when he claimed to be
out making contacts. Mr. Booth also said that when he supervised him the grievor
had disappeared for hours, could not account for his time and did not provide a
written record of his activities. Mr. Booth stated that the grievor was removed
from a job placement team since he had not secured a single job for a client.
In his June 14, 1996 memorandum Mr. Booth referred to a situation where
the grievor took a client to a remote area "for a walk" and lost the client for about
two hours. The grievor's explanation was that he bent down to tie his shoelace and
when he looked up the client was gone. In his memorandum Mr. Booth made the
following comments which indicated that the grievor had not been following
through on assigned tasks and Mr. Booth suspected that he had been preoccupied
with certain other money making activities:
David was transferred for a short time under the supervision of
Renee Karwacki. Renee reported that David required a great deal
of supervision, that his written work was below acceptable
standards, and that he did not follow through on assigned tasks.
Although David would agree to all tasks that were assigned to him,
he simply did not deliver, unless repeated requests, and frequent
checking upon his would eventually force the issue. This was
extremely time consuming and frustrating, both for supervisors, and
for co-workers. Renee spent many hours with David coaching him
on his areas of weakness, and attempting to assist him to improve.
She found that David was unreliable and frequently did not do what
he said he was going to do. Although verbally cooperative, David
continued to neglect his duties, even when specifically directed by
the supervisor.
There have been complaints about David Pride from every staff
team that he has worked with. Staff members feel that David is too
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busy and preoccupied with his other jobs, (farming, leeching,
general contracting), to fully participate in being part of a staff team
at KACL. It has also been suggested that when David has
disappeared for hours with a consumer, and will not account for his
time or activities, that he is actually just taking the consumer along
with him while he (David) does his other jobs. This was mentioned
to David Pride, and he became very angry and denied this.
In June 1996 Mr. Booth wrote to the grievor to complain that he was not
bathing a particular client and also not participating in grocery shopping with a
client. He directed that the grievor perform these and certain other chores. That
same month the grievor was given a reprimand for not attending a scheduled staff
meeting. In July 1996 a supervisor wrote to the grievor to complain that he had not
submitted month end reports for April and May 1996.
On September 11, 1997 the grievor was given three different disciplinary
penalties. One was a one-day suspension for reporting to work 15 minutes late.
Another was a one-day suspension for insubordination for not following directions
relating to the proper care of a client. The third was a written warning for
indicating in a logbook that he had repositioned a client when he had not done so.
There was then a period of over a year and a half during which the grievor
appears not to have received any discipline or coaching. On May 14, 1999,
however, he was given coaching for not properly caring for a client and for
submitting an incorrect health and safety checklist. Over a year later, on July 24,
2000, he was given coaching with respect to not performing housekeeping and
laundry duties in the evening. On October 5, 2000 he was given a verbal warning
for not attending a staff meeting. On January 17, 2001 he was given a two-day
suspension for sleeping during a night shift.
On January 18, 2002, the grievor received coaching for having failed to
attend at staff meetings on September 19, November 14, 2001 and January 16,
2002, regularly allowing the bedding of a client to become soaking wet and failing
to perform housekeeping duties. On April 29, 2002 he was docked a days' pay for
failing to report for a scheduled shift. This was followed by a period of about a
year and a half prior to the police raid during which the grievor did not receive any
discipline and no counseling letters were placed on his file. In response to a
question from the union advocate respecting the grievor's activities in 2003 Mr.
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Retson said that the grievor had shown bad judgment and not been a good
performer and he did not know why this had not been documented.
THE GRIEVOR'S PRIOR CONVICTION
Mr. Retson attended most of the court hearings relating to the 2003 criminal
charge against the grievor. He was present on January 19, 2004 when Crown
counsel and the grievor's lawyer agreed to amend the outstanding charge from
trafficking to producing a substance included in Schedule 2 of the Controlled
Drugs and Substances Act. The grievor entered a plea of guilty to that charge.
Crown counsel and the grievor's lawyer then jointly proposed that the grievor
receive an 18 month conditional sentence. In response the judge indicated that he
had been the sentencing judge following the grievor's conviction for trafficking in
1993. He commented that on that occasion the grievor had been involved in "an
extraordinary elaborate grow operation".
Mr. Retson testified that the information respecting the grievor's prior
conviction had caught him off guard. He said that he had not been aware that the
grievor had previously been charged with a trafficking offence. He said that he
was told that the grievor had been convicted of simple possession of marijuana and
had received a conditional discharge.
The union filed into evidence a March 24, 1993 newspaper article which
reported that the grievor and another individual had been charged with cultivating
a narcotic, possession of a narcotic for the purpose of trafficking, the unsafe
storage of fIrearms and theft of hydro. At the time the grievor was working for the
employer as a part-time relief worker. Mr. Retson testified that he did not see the
article when it was published.
Ms. Tio testified that she saw the March 24, 1993 newspaper article the day
it was published. She said that the following day a scheduled meeting was held
attended by herself, other supervisors and Directors Sharon White and Michele
Marcus. She said that the meeting was held in the same building where Mr. Retson
had his office. She indicated that prior to the start of the meeting while she, Ms.
White and Ms. Marcus were in a hallway she told the other two about the grievor
having been charged. She said that partway through their discussion they were
joined by Mr. Retson and she was certain that he was present when she referred to
the charges against the grievor. She also indicated that while they were in the
hallway Mr. Retson had read the newspaper article.
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Later, when being questioned by employer counsel, Ms. Tio said that she
talked with Ms. White and Ms. Marcus for about five minutes before they were
joined by Mr. Retson. She said that during those five minutes they went through
what was in the newspaper article. She also said that when Mr. Retson joined them
he was brought up to date by Ms. White. Later in her evidence Ms. Tio said that
Ms. Marcus read out parts of the article about trafficking, possession and the
cultivation of marijuana. According to Ms. Tio, Mr. Retson said there was nothing
they could do until the grievor was convicted. She said that she was flabbergasted
that Mr. Retson had not insisted the grievor be fIred or suspended. She said that
she remembered Mr. Retson's comment because it had been so out of character for
him. At the hearing Mr. Retson indicated that he had no recollection of the
meeting in the hallway and he expressly denied making the statement attributed to
him by Ms. Tio.
During his questioning of Ms. Tio employer counsel established that her
recollection of when it was she joined the employer, when she became a supervisor
and when she ceased working for the employer had all been offby at least a year.
I accept Ms. Tio's testimony that she discussed the 1993 newspaper article
in the hallway with Ms. White and Ms. Marcus. I believe they were likely joined
in the hallway by Mr. Retson whose office was nearby but after he joined them
there was no further discussion about the charges against grievor. I base this
conclusion in part on the lapse of over eleven years between the discussion in the
hallway and when Ms. Tio gave her evidence. In the interim her memory had
clearly faded with respect to the dates of her employment. In addition, her
evidence about what happened in the hallway was inconsistent in terms of who
read the newspaper article and who she recalled telling Mr. Retson about the
charges against the grievor. Another consideration was Mr. Retson's evidence. He
denied knowing about the 1993 charges. He expressed his views respecting the
2003 charge against the grievor and the grievor's conduct that gave rise to the
charge in very forceful terms. It seems likely that had he been aware of the 1993
charges he would have expressed equally strong views at the time.
THE POLICE RAID
The employer called Detective Constable Grant Cowles to testify with
respect to the police raid on the grievor's farm. D/C Cowles is a member of the
Ontario Provincial Police Drug Enforcement Unit. He was in charge of executing
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a warrant at the grievor's farm on October 22, 2003. He testified that the search
was conducted jointly by officers of the OPP, the Kenora Police and the Royal
Canadian Mounted Police. He indicated that simultaneous searches were done at
two other properties, one of which belonged to the grievor's brother.
The union advocate objected to D/C Cowles being called to give evidence
with respect to the raid on the grievor's farm. He submitted that it was not
information the employer had when it decided to discharge the grievor and the
employer could not now rely on what it did not know at the time. He further
contended that a court had found that the marijuana grown on the grievor's farm
was for his personal use and this finding could not now be relitigated. In reply
counsel for the employer said that he was seeking to put into evidence the
circumstances that led to the charge against the grievor and his conviction. He
contended that the judge's finding with respect to the grievor's intended use of the
marijuana had been only for the purpose of sentencing and was not determinative
for these proceedings. I ruled orally that I would hear the evidence of D/C Cowles
and later decide on its relevance. Having done so I am satisfied that his evidence
was relevant to the reasons advanced by the employer for having discharged the
gnevor.
D/C Cowles testified that the police found marijuana at various locations in
the house shared by the grievor and his common law wife. He said that 448
marijuana branches were found drying in a barn on the grievor's property. He said
that the barn also contained four zip locked bags containing marijuana bud, two
boxes of zip lock bags, a box of marijuana shake, a drying table and two large
commercial scales with marijuana residue and small clippings on them. He
indicated that in the bush on the grievor's property the police located an additional
51 marijuana branches. He said that a small digital scale was located in a pickup
truck on the grievor's property.
D/C Cowles testified that a total of 17.1642 pounds of marijuana were seized
at the grievor's farm. He said that "we" estimated that if the amount seized had all
been processed it would have weighed 7 pounds and had a street value of about
$63,000. He said that generally a gram of marijuana goes for $20. In response to
questions from union advocate D/C Cowles indicated that a gram of marijuana
might sell for as low as $10.
D/C Cowles stated that from conversations with marijuana users he
understood that a heavy user would utilize about four grams of marijuana per day.
He indicated that a gram of marijuana would produce two or three joints.
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D/C Cowles testified that several firearms were seized at the grievor's
property. He noted that the grievor had possessed a firearms card for all of the
guns.
During his cross-examination of D/C Cowles the union advocate suggested
that the grievor had been estranged from his brother. D/C Cowles indicated that
the grievor told him that this was the case although a background investigation had
led "us" to believe there were ties between the two men. The union advocate
suggested to D/C Cowles that the commercial scales found on the grievor's
property had been purchased for use in a deli that the grievor had owned. D/C
Cowles replied that he had not been aware of such a deli.
As a result of the police raid both the grievor and his common law wife were
charged with possessing marijuana for the purposes of trafficking contrary to the
Criminal Code.
THE GREIVOR'S INTENDED USE OF THE MARImANA
As touched on above, the charge against the grievor was amended to
producing a substance included in Schedule 2 of the Controlled Drugs and
Substances Act. The grievor entered a plea of guilty to the amended charge on
January 19, 2004. At that time and again at a sentencing hearing on July 26, 2004
Crown counsel outlined the amount and form of marijuana found at the grievor's
residence. She also noted the presence of commercial scales and zip lock bags. At
the July 26, 2004 court hearing the presiding judge, Mr. Justice D. Fraser, heard
submissions with respect to an appropriate sentence. The court transcript shows
that the judge viewed the grievor's intended use of the marijuana as a prime
consideration in sentencing, that is whether it was solely for his own use or
whether he intended to sell some of it.
At one point during the July 26, 2004 court proceedings Mr. Justice Fraser
noted that the author of a pre-sentence report had accepted that the grievor was a
heavy daily user of marijuana. During the same court hearing Mr. S. Proudlove,
the grievor's lawyer, said that the grievor was self-reporting complete abstinence
since the day he was charged. Mr. Proudlove also made the following submissions
which indicated that although a large portion of the marijuana found at the
grievor's farm was intended for his personal use some was intended to offset the
cost of his frequent use:
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This is basically, it, it's a fairly sturdy weed by all, by all accounts
but this is still a limited grow season area, certainly not the most
favourable area for cultivation of almost anything. In either event,
there would be no more than one possible crop per season, as
indicated, and in an area, or in a household with such excessive use,
I think it's fair to say that even though there's a general
presumption against deducing evidence that, or against indicating
that amounts of this quantity could be for personal use, clearly a
large portion of this was for personal use and it was indicated
candidly by my client that the nature of the enterprise was intended
to offset the cost of his frequent drug use, or his heavy drug use.
And again, there was none of the, none of the usual aggravating
factors are present; that would be the sale of marijuana to children,
that would be the hydro bypass, placing others in the community in
danger.
In the course of his submissions the grievor's lawyer suggested to the court
that the grievor had acquired the commercial scales found at his farm for a dairy
and delicatessen business. Presumably he was not aware that the police had found
marijuana residue on the scales.
Mr. Justice Fraser did not sentence the grievor on July 26, 2004 but decided
to consider the matter further and review certain court judgments put forward by
the grievor's lawyer. He did, however, make the following comments about how
the grievor's grow operation could not be seen as purely commercial one and how
growing marijuana outside in Northern Ontario was a one-crop operation:
I accept the proposition that this is a completely different
cultivation operation than the last one. The last one was marked by
highly elaborate efforts to conceal; this one was not. I accept the
proposition that this cannot be seen as purely a commercial
operation. I accept your counsel's point, which was well made that
in this part of the world, growing marijuana outside is generally
speaking, a one crop operation and therefore if you have only one
crop, you have to make hay while the sun shines and you have to
accumulate once for a year. So therefore, if you are considering
personal use, you have to be prepared to recognize that someone
who is growing his own or her own marijuana would be growing
enough for a year.
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I am prepared to accept the thrust on that argument. I am troubled
by the presence of scales and I am very troubled by your record.
The grievor was sentenced on August 9, 2004. At the time Mr. Justice
Fraser made the following statements which indicated that he had concluded that
the grievor was cultivating marijuana only for his personal use and therefore he
would accept the agreement between the grievor's lawyer and Crown counsel:
This case resolves itself very simply on a factual decision I have
made. On reflection I have come to the conclusion that Mr.
Proudlove has persuaded me that the cultivation in this case
involves personal use cultivation. The presence of a commercial
scale is troubling but there is not enough evidence in my view to
justify the court focusing on that one object and reaching the
conclusion that we are dealing with cultivation that is of a size that
involves a commercial aspect. This is critical because we are
dealing with a rather unusual situation. There is a joint submission
before the court for a conditional sentence. This joint submission
was reached at a time when the Crown was ignorant of Mr. Pride's
background. It was the court who brought it to the Crown's
attention the fact that Mr. Pride had previously been convicted of a
cultivation charge that involved a high level of sophistication.
Unlike his earlier charge the charge before the court today does not
involve any degree of sophistication. There was no hydro by-pass.
There was no effort made to hide what was going on apart from
relying on the rural aspect of Mr. Pride's property. So although I
had initially some considerable difficulty with the Crown's
position, I am satisfied at the end of the day based on my
acceptance of Mr. Proudlove's submission that this was in effect for
personal use. That because it did not involve irrigation or the use of
grow lights, this is a one crop operation and therefore the size of the
material accumulated simply reflected a year's worth of harvesting.
As noted above, the union advocate contended that I was bound by Mr.
Justice Fraser's conclusion that the grievor was growing marijuana for his personal
use. He likely had in mind the judgement of the Supreme Court of Canada in
Canadian Union of Public Employees, Local 79 v. City of Toronto (2003), 120
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LA.C. (4th) 225. The court held that the common law doctrine of abuse of process
barred relitigation of a grievor's criminal conviction and an arbitrator was required
as a matter of law to give full effect to the conviction.
Counsel for the employer argued that while a finding of innocence or guilt
might be binding on me, a judge's finding for the purpose of deciding on a sentence
was not. He submitted that the grievor had been growing marijuana for his
personal use and for sale as demonstrated by the ziplock bags and commercial
scales, the amount of marijuana involved, and the submissions made by the
grievor's lawyer
The grievor pled guilty to a charge of producing a substance included in
Schedule 2 of the Controlled Drugs and Substances Act. The court accepted the
plea. The parties and I are logically bound by the grievor's plea. The court did
not, nor was it called upon, to make any finding with respect to whether the grievor
was innocent or guilty of possessing marijuana for the purposes of trafficking.
Moreover, had that been the charge before the court and the grievor had been
found not guilty, due to the less stringent onus of proof in an arbitration proceeding
the finding would not necessarily be conclusive at arbitration. Given these
considerations I do not view myself as being bound by Mr. Justice Fraser's fmding
with respect to the grievor's intended use of the marijuana grown on his farm.
Based on the material before me I find that the grievor intended to use some
of the marijuana for his personal use and to sell some of it. I base this on the large
amount of marijuana discovered by the police, the two commercial scales
containing marijuana residue, the presence of zip lock bags and the statement by the
grievor's lawyer on July 26, 2004 that "clearly a large portion of this was for
personal use and it was indicated candidly by my client that the nature of the
enterprise was intended to offset the cost of his frequent drug use, or his heavy
drug use" .
PUBLICITY RELATING TO THE POLICE RAID AND THE GRIEVOR'S
SUSPENSION
On October 24, 2003 the Kenora Miner and News carried a front-page story
related to the three police raids on October 22, 2003. The article noted that charges
had been laid against six individuals although it did not name them. The article
reported that the raids had netted over $1 million worth of drugs and 12 long guns.
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The article quoted an OPP Detective Staff Sergeant as saying that the investigation
had been assisted by the biker enforcement unit.
In a front page article on October 28, 2003 the Miner and News reported the
names of those who had been charged by the police as a result of the three raids.
The report included the names of the grievor, his common law wife and his
brother. The article noted that all the accused had been released pending court
appearances and that all except for the grievor and his common-law spouse had
been cautioned not to leave Northwestern Ontario.
At some point following the October 28, 2003 newspaper article Supervisor
Booth had a discussion with the grievor that Mr. Booth subsequently reported on to
Mr. Retson, either directly or through Ms. Marcus. In his opening statement the
union advocate set out what he understood the grievor had said to Mr. Booth. Mr.
Retson, however, testified to quite a different version based on what he had been
told. Since neither the grievor nor Mr. Booth testified at the hearing I have not
given any weight to either version.
Mr. Retson testified that after learning about the charge against the grievor
he discussed the situation with other senior staff and three considerations were
raised. These were: (1) a requirement to protect clients from undue risk and
influence; (2) family members of clients were concerned about the vulnerability of
clients and wanted peace and security of mind; and (3) the reputation of the
employer, since when one employee is charged or brought into disrepute it brings
the reputation of the Association and other staff into disrepute.
Mr. Retson testified that after the grievor was charged there was a feeling
among senior staff that his marijuana consumption might explain his poor
judgement over the years. He said that there was a risk to clients due to inattention
on the part of the grievor and a risk that he would not provide the supports and
services required to keep clients safe and secure. He also said that there was a
concern that the grievor would exercise undue influence over clients with respect
to the use of drugs.
Mr. Retson indicated that at some point prior to November 4, 2003 he went
to the courthouse and confirmed that the grievor had been charged with possession
of marijuana for the purpose of trafficking. He said that he also called the OPP
who advised him that he would have to attend the court proceedings in order to
obtain any additional information.
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On November 4, 2003 the grievor was handed a letter signed by Mr. Retson
advising him that he was suspended without pay "pending investigation into your
conduct which is the subject of criminal charges relating to possession and
trafficking of an illegal substance". .
In response to questions from the advocate for the union Mr. Retson said
that he would suspend anyone who created an increased risk for clients and he
would suspend fIrst and then get clarification of the facts. Mr. Retson agreed with
the union advocate that he WaS concerned that the grievor might share marijuana
with clients. He said that he was also concerned that because of the grievor's
usage there was a greater likelihood that he would make an inappropriate decision
or fail to provide a safe and secure environment for clients.
In his November 4, 2003 letter to the grievor Mr. Retson advised him that he
was being suspended pending investigation. In his evidence Mr. Retson indicated
that because of what he had been told by the OPP the employer's investigation was
restricted to attending at the court hearings. He said that he personally attended
every court hearing except for one held on July 26, 2004 while he was on vacation
and that one was attended by the Acting Executive Director.
As noted above, on January 19, 2004 the grievor entered a guilty plea to a
charge of producing a substance included in schedule two of the Controlled Drugs
and Substances Act. The court was then provided with a summary of what had
been found on the grievor's property, including 17.1642 pounds of marijuana. The
grievor's lawyer and the Crown Attorney advised the court that they were in
agreement on an 18-month sentence to be served in the community. At that point
Mr. Justice Fraser indicated that he recalled sentencing the grievor in 1993. He
said that he would be ordering a pre-sentence report and would give counsel an
opportunity to prepare to argue for the proposed sentence although "you are going
to have to work very hard to persuade me that this is appropriate". Mr. Retson was
present in court on January 19, 2004. He testified that from his perspective 17
points of marijuana was an incredible amount of drugs. He also said that he had
been incredulous at the joint sentencing submission advanced to the court.
A summary of the January 19, 2004 court hearing was contained in the
January 20,2004 edition of the Miner and News. It described Mr. Justice Fraser as
having been incredulous at the sentence proposed by Crown counsel and the
grievor's lawyer. A summary of the court proceedings was also contained in a
January 24, 2004 edition of The Enterprise, a weekly newspaper. Mr. Retson
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testified that following each of the grievor's court appearances there were reports
on the local radio with respect to what had occurred.
THE GREIVOR'S DISCHARGE
The grievor was originally scheduled to be sentenced on February 23, 2004.
That court date and a number of other subsequently scheduled court dates were,
however, adjourned, apparently because the grievor's lawyer was ill. Mr. Retson
indicated that he originally intended to wait for the final outcome of the court
proceedings before taking further action but because the case was dragging on and
he did not have any idea when it might actually be completed he decided to take
action.
On June 25, 2004 the grievor was provided with a letter from Mr. Retson
that read as follows:
Dear Mr. Pride
RE: Your Termination
Kenora Association for Community Living is terminating you
employment effective immediately on the grounds of conduct
giving rise to your conviction under s. 7(1) of the Controlled Drugs
and Substances Act relating to the production of cannabis
(marijuana). Such misconduct is incompatible with your continued
employment.
Sincerely
"James C. Retson"
At the hearing employer counsel asked Mr. Retson why he said in his letter
that the grievor's conduct was incompatible with his continued employment. Mr.
Retson replied that the employer's job was to protect clients, to provide them with
support services and to provide them with a safe and secure environment but the
grievor was prepared to do things that put clients at risk. He said that the grievor
did not see it as inappropriate to engage in a practice that would put his judgement
in question, there was a concern that the grievor would engage in trafficking with
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clients, the families of clients had concerns and there was a concern that the
grievor's actions would reflect negatively on the reputation of the employer.
Mr. Retson testified that a family member of a client expressed concerns to
him in connection with the trafficking charge against the grievor and family
members of other clients expressed concerns to members of the employer's Board.
Mr. Retson said that families were concerned about the employer employing
someone who was involved in the production of a large amount of drugs. He also
said that concern was expressed that a person with a large amount of marijuana
would be in a position to share drugs with clients. Mr. Retson acknowledged that
he had no evidence that the grievor had ever provided marijuana to clients. He
also acknowledged that no relatives of the three clients the grievor had been
servicing had raised concerns with him.
EVENTS SUBSEQUENT TO THE GRIEVOR'S DISCHARGE
As noted above, a court hearing was held on July 26, 2004 at which Mr.
Justice Fraser received submissions respecting an appropriate sentence for the
grievor. In his submissions the grievor's lawyer noted that the grievor had not been
conducting a hydroponic grow operation. He contended that the marijuana found
on the grievor's property would at the high end of the range be worth
approximately $30,000. In a reference to the author of the pre-sentence report he
said: "I think at one point he indicates that there was an amount of marijuana being
used up to an ounce a day during a period of heavy use".
Another court hearing was held on August 9,2004 at which Mr. Justice Fraser
imposed a six-month jail sentence on the grievor to be served conditionally in the
community. He also imposed a fine of $5,000. He made an order prohibiting the
grievor from possessing a fIrearm.
At the hearing Mr. Retson indicated that from the statement by the grievor's
lawyer that the grievor reported using up to an ounce of marijuana a day he
inferred that the grievor had admitted to taking more drugs than he was actually
using in order to get a lighter sentence. He asked how in terms of credibility he
could believe anything the grievor might say in the future. He also said that he felt
the sentence imposed on the grievor had been absurd.
17
On July 28, and August 13, 2004 the Miner and News published reports of
the grievor's sentencing proceedings. On August 14, 2004 The Enterprise also ran
a story respecting the outcome of the court proceedings.
THE EMPLOYER'S SUBMISSIONS
Counsel for the employer contended that the employer had met the onus of
establishing justification for initially suspending the grievor pending further
investigation and then for terminating his employment.
Employer counsel contended that the union's theory was that the grievor had
been using an ounce of marijuana per day. He argued that with 2 to 3 grams per
cigarette this would have added up to an almost unimaginable level of
consumption. He submitted that the grievor was not a candidate for any sort of
mitigation in terms of continued employment. He argued that the grievor's serious
lapses during his employment could now be attributed to his marijuana usage.
Employer counsel contended that it would be intolerable to have an employee who
is a heavy user of marijuana care for developmentally challenged clients. He
further contended that one could infer from the submissions of the grievor's
lawyer, the pre-sentence report and the grievor's failure to testify in these
proceedings that the grievor is still using marijuana.
Employer counsel argued that there is a public quality to employment with
the employer, involving as it does the care of children and vulnerable individuals,
that is incompatible with the grievor's continued employment.
Employer counsel noted that the situation involving the grievor had been
reported in the newspapers from October 2003 to August 2004. He submitted that
the length of time it was in the headlines increased the seriousness of the grievor's
conduct in terms of damage to the employer's reputation and raising questions in
the mind of the community. He noted that the newspaper articles contained
references to among other things one of the biggest drug busts in the City's history,
six co-accused, firearms, biker enforcement unit, commercial scales, a previous
conviction, commercial and sophisticated, a judge being incredulous at the
leniency of the proposed sentence, 12 long guns and large amounts of marijuana.
Employer counsel reviewed in some detail the grievor's work history. He
argued that the grievor had neglected his duties in a way that one can infer was
caused by his heavy use of marijuana. He contended that there had been a
18
continued neglect of duty which endangered the peace of mind, security, well
being and safety of the clients who he was supposed to be caring for and helping to
integrate into the community.
Employer counsel reviewed the evidence of D/C Cowles with respect to
what was found on the grievor's property. He also reviewed the testimony of Mr.
Retson which indicated that he removed the grievor from the workplace in order to
protect clients from undue risk and undue influence, to achieve peace and security
of mind for relatives and friends and to protect the reputation of the employer.
Employer counsel referred to Mr. Retson's concerns about the grievor providing
marijuana to clients and putting clients at risk due to poor judgement and to family
members expressing similar concerns.
Counsel for the employer referred in his submissions to a number of decided
cases. One was Re Emergency Health Services Commission and Ambulance
Paramedics (1987), 28 LA.C. (3d) 77 (B.H. McColl). The grievor in that case was
an ambulance attendant. While on a medical leave he was charged with two counts
of selling a regulated drug, namely Valium. The Health Service suspended him.
The grievor subsequently pled guilty and was given a suspended sentence of two
years. The Health Service then discharged him.
In his award Arbitrator McColl stated that certain previous cases had held
that if a discharge is to be sustained for conduct away from work the employer
must show that:
1) The conduct of the grievor harms the company's reputation or product.
2) The grievor's behaviour renders the employee unable to perform his
duties satisfactorily.
3) The grievor's behaviour leads to refusal, reluctance or inability of the
other employees to work with him.
4) The grievor has been guilty of a serious breach of the Criminal Code
and thus rendering his conduct injurious to the general reputation of the
company and its employees.
5) Places difficulty in the way the company properly carrying out its
function of efficiently managing its Works and efficiently directing its
working forces.
Arbitrator McColl went on to state that there was a general consensus amongst
arbitrators that it is not necessary for an employer to show that all of the above
19
criteria exist and depending on the degree of impact anyone of the listed
consequences might warrant discipline or discharge. He upheld the discharge of
the grievor on the basis that the employer was required to demonstrate to the public
that it was fulfilling its public duty towards those requiring emergency services and
maintaining in its employment persons of suitable character and ability. He relied
on the fact that if he were reinstated the grievor would be in attendance in medical
situations where he would have access to medications. In the course of his award
Arbitrator McColl made the following comments at p. 88-9 respecting the
grievor's trafficking in drugs that were relied on by employer counsel in these
proceedings:
While arbitrators are generally constrained to avoid moralizing on
employee misconduct, it is difficult if not impossible to ignore that
fact that illegal trafficking in drugs is a serious plague on our
society. Its result is the ruination, for private profit, of the lives of
members of our society. Its effect, particularly on youth, simply
cannot be ignored in determining the seriousness of the misconduct.
There is no evidence in the criminal proceedings or in these
proceedings, that the grievor shows any remorse for being a
principal in an illegal scheme to traffic and distribute drugs.
Another case referred to by employer counsel was Re Colchester East Hants
District School Board and Canadian Union of Public Employees, Local 1047
(1993),34 L.A.C. (4th) 72 (W.H. Kydd). The grievor in that case was a school bus
driver. The police raided his home where they located 1,120 grams of marijuana.
The grievor pled guilty to a charge of cultivating marijuana and received a. fine.
The School Board discharged him. At arbitration the grievor contended that he
had only used or shared marijuana once or twice a year, a claim disbelieved by the
arbitration board. The board upheld his discharge. It reasoned as follows at p. 84
that to place him back on the job with children would damage the reputation of the
school board:
The implausibility of the grievor's evidence with respect to his
limited usage, given the large quantity seized, raises serious
concerns about the risk of returning him to day-to-day unsupervised
conduct with school children. Parents have no choice but to entrust
their children to the care of a bus driver employed by the school
board and they are entitled to have confidence in that driver. To
place the grievor back on the job, with unsupervised access to
20
children, would in this board's opinion likely provoke a severe lack
of confidence and result in damage to the reputation of the school
board to the extent that it is not reasonable to try and restore the
employment relationship by employing the grievor as a bus driver.
Another school board case relied on by employer counsel was Re School
District No. 60 and United Brotherhood Local 2397 1994 C.LA.S.J. Lexis 10490
(H. Hope). The grievor in that case was responsible for distributing mail to various
schools. He pled guilty to a charge of possessing marijuana for the purpose of
trafficking and was discharged. The evidence at the arbitration hearing indicated
that the grievor had been engaged in the large-scale cultivation and sale of
marijuana. The arbitrator held that this was incompatible with his continued
employment by an employer who was charged with the education of students and
upheld the grievor's discharge.
Re City of Lethbridge and Amalgamated Transit Union, Local 987 (2000),
98 L.A.C. (4th) 264 (D.G. Tettensor) concerned a transit operator who was
discharged after pleading guilty to trafficking in marijuana. The grievor's lunch
bag located on his bus had contained over $6,600 in cash. In the award Arbitrator
Tettensor concluded that an employer was not obliged to actually prove injury to
its general reputation but instead an arbitrator should consider what a fair-minded
and well-informed member of the public might think about the grievor's conduct
and its impact on his employer. The arbitrator concluded that such a person would
be concerned about having an individual who was convicted of a serious criminal
offence perform the role of an operator providing a service to a wide cross-section
of the public that included a large component of young people. The arbitrator
upheld the grievor's discharge.
Counsel for the employer referred to Re General Motors of Canada Ltd. and
United Automobile Workers. Local 222 (1985), 21 L.A.C. (3d) 445. In that case
Arbitrator E.E. Palmer upheld the discharge of an inspector who had been
convicted of possession of hashish oil for the purposes of trafficking and sentenced
to 89 days in jail. He commented that a person involved in such a serious case of
trafficking posed a threat to society and to his employer and fellow workers.
Employer counsel referred to two railway cases decided by Arbitrator M.G.
Picher. The first in time was Re Canadian Pacific Ltd. and United Transportation
Union (1987), 31 L.A.C. (3d) 79. That case involved a conductor who was
charged with growing marijuana in his backyard and in a greenhouse. The grievor
21
refused the company's request that he take a drug test. He initially refused to
provide the company with any information about the criminal charge but later
contended that the marijuana had been cultivated by his wife. He was discharged.
The criminal charges against the grievor were subsequently struck down due to a
delay in bringing the matter to trial. Arbitrator Picher upheld the grievor's
discharge. In doing so he referred to his role in the movement of trains and the
.lack of a credible account from him respecting his actions. In Re Canadian
National Railway Co. and United Transportation Union [1994] C.LA.D. No. 912
Arbitrator Picher upheld the discharge of a trainman who had been convicted of
possession of marijuana and hashish and sentenced to 90 days in jail. The
trainman had prior convictions over a 14-year period for possession of a narcotic
and possession for the purposes of trafficking. In the most recent incident the
police found marijuana growing in his home as well as a small quantity of hashish
in his wallet. Arbitrator Picher reasoned that the grievor's action in carrying
hashish in his wallet raised serious questions with respect to his possession of that
substance while on duty or subject to duty.
Employer counsel also referred to Re School District No.6 and Canadian
Union of Public EmT'loyees. Local 440 (2002), 114 LA.C. (4th) 298. In that case
Arbitrator M. Jackson upheld the discharge of a school bus driver who had been
convicted of being in care and control of a personal vehicle while impaired and
whose driver's license had been suspended for a year. She held that the grievor's
offence had been detrimental to the reputation of the School District. She also
relied on the fact that the suspension of the grievor's license made it impossible for
him to carry out his job.
Employer counsel referred to three cases where the suspension of an
employee pending trial on a criminal charge was upheld. Re Ontario Jockey Club
and Mutual Employees' Association (1977), 17 LA.C. (2d) 176 (R.L Kennedy)
related to an employee who was employed to sell betting tickets. He was charged
with allowing his apartment to be used as a betting-house. Re City of Nelson and
Canadian Union of Public Employees, Local 339 (1983), 12 L.A.C. (3d) 73 (M.L
Chertkow) concerned a maintenance employee at a civic arena who was charged
with breaking and entering into a pharmacy. The third case was Re Board of
Governors of Exhibition Place and Labourers' International Union, Local 506
(1990), 9 LA.C. (4th) 124. That case concerned a laborer who on leaving work
was charged with multiple counts of possessing illegal drugs. Arbitrator S. Schiff
inferred that he had been supplying drugs to friends at work.
22
In addition to the cases referred to above, counsel for the employer relied on
a number of cases to support his contention that I should draw on adverse inference
against the grievor from the fact he did not testify.
THE UNION'S SUBMISSIONS
The advocate for the union contended that the employer had not met the
onus of justifying either the suspension of the grievor or the subsequent
termination of his employment. He submitted that there was no evidence that the
grievor was ever impaired at work, that he had brought marijuana to work or that
he had tried to influence clients. He further argued that there was no evidence that
the grievor had been involved in a drug culture. He noted that all of the weapons
discovered on the grievor's farm had been lawfully possessed and contended that
most people in Northern Ontario possess firearms. He also referred to the
grievor's self-reporting that he was no longer a user of marijuana.
The union advocate objected to any reliance on the grievor's prior discipline
record. He also raised a number of objections to the propriety of certain of the
evidence led by the employer, as he did during the evidentiary part of the hearing.
The union advocate contended that although a $63,000 value had been
placed on the marijuana found at the grievor's farm it could in fact have been
worth as little as $16,800. He argued that the grievor's conduct did not justify any
discipline. He noted that the collective agreement in Article 10 provided for a
specific penalty of discharge for using alcohol or prohibited drugs on the job or
reporting for work under the influence of them but was otherwise silent on the use
of drugs.
The advocate for the union referred to certain news releases issued by a
Senate Special Committee on Illegal Drugs. One dated September 4, 2002
reported that after a two-year study the Committee had concluded that marijuana
should be legalized. The union advocate relied on the following portion of the
news release:
"Scientific evidence overwhelmingly indicates that cannabis is
substantially less harmful than alcohol and should be treated not as
a criminal issue but as a social and public health issue", said
Senator Pierre Claude Nolin, Chair of the Special Committee, in a
news conference today in Ottawa. "Indeed, domestic and
23
international experts and Canadians from every walk of life told us
loud and clear that we should not be imposing criminal records on
users or unduly prohibiting personal use of cannabis. At the same
time, make no mistake, we are not endorsing cannabis use for
recreational consumption. Whether or not an individual uses
marijuana should be a personal choice- that is not subject to criminal
penalties. But we have come to the conclusion that, as a drug, it
should be regulated by the State much as we do for wine and beer,
hence our preference for legalization over decriminalization."
The advocate for the union also relied on certain excerpts from Donald
Brown and David Beatty Canadian Labour Arbitration (3rd ed.) loose-leaf,
including the following statement at section 7 :30 1 0 about the line that arbitrator's
draw between an employee's working and private life:
Arbitrators have always drawn a line between employees' working
and private lives. They often make the point that employers are not
custodians of the characters or reputations of their employees. The
basic rule is that an employer has no jurisdiction or authority over
what employees do (including where they live), outside working
hours, unless it can show that its legitimate business interests are
affected in some way. As a result, in order for an employer to
justify disciplining an employee for misconduct committed when he
or she is not on duty, it must prove that the behaviour in question
detrimentally affects its reputation, renders the employee unable
properly to discharge his or her employment obligations, causes
other employees to refuse to or be reluctant to work with that
person, or inhibits the employer's ability to efficiently manage and
direct the production process. Off-duty misconduct that occurs on
company property is subject to discipline as well.
The union advocate made reference to a number of cases. One was Re Dorr-
Oliver-Long and United Steelworkers, Local 4697 (1973), 3 L.A.C. (2d) 193 (J.D.
O'Shea). The grievor in that case was an overhead crane operator. When the
company learned that he had been charged with the possession of narcotics for the
purpose of trafficking it suspended him. The grievor filed a grievance challenging
his suspension. The grievor was subsequently convicted of possession of
marijuana for the purpose of trafficking and sentenced to a four-month jail term.
24
The company then discharged him. The grievor appears not to have grieved his
discharge. The only issue before the arbitration board was the propriety of his
suspension. The arbitration board noted that there was no evidence to indicate that
the grievor had used narcotics at work or in such a manner as to impede his ability
or that he had engaged in trafficking at work. It held that aside from the grievor's
confinement in prison "the mere conviction" for the offense of possession of a
narcotic for the purpose of trafficking would not establish just cause for the
company to discipline him. The Board concluded that the laying of the charge
would likewise not be just cause to suspend him. It directed that the grievor be
compensated from the time he was suspended until the imposition of his
punishment. In the course of its award at p. 200-1 the arbitration board analogized
possession of a narcotic for the purpose of trafficking with bootlegging liquor and
concluded that the grievor's activities would not likely affect the company's
reputation. Its reasoning was as follows:
When considering the facts of this case, we are of the view that if
we were to compare the charge of which the grievor was convicted
to an employee who was convicted of bootlegging liquor from his
home, we are of the view that such a comparison tends to remove
much of the emotion which attaches to the conviction of possession
and trafficking in narcotics. The fact that an employee may engage
in bootlegging from his house does not tend to establish that he will
also engage in bootlegging on the company's premises. Again,
while other employees may have less respect for an employee who
engages in trafficking in marijuana or even bootlegging, the fact
that such employee continues to be employed by the company will
not necessarily so adversely affect the morale of its fellow
employees so as to adversely affect the company's production or
product. Finally, the mere fact that an employee engages in
bootlegging of liquor and the fact that he is also a user of such
liquor would not establish that he would use the liquor so as to
impair his ability to operate a crane or in any way jeopardize the
safety of persons working in the area where the crane is operated.
Weare of the view that similar conclusions can be reached with
respect to the grievor's conviction of possession of marijuana for
the purposes of trafficking.
It is unlikely that his personal activities which led to the laying of
the charge would adversely affect the general reputation of the
25
company or its employees. Although his subsequent conviction
would not enhance the reputation of the grievor it is readily
apparent from the nature of his conduct that the grievor was on a
frolic of his own and that his known conduct would not, of itself,
prevent him from functioning as a competent crane operator,
especially in view of his good work record immediately preceding
his suspension. We accordingly find that the criteria enunciated in
the Millhaven Fires Ltd. award, supra, are not applicable to the
facts of this case.
We therefore find that the mere conviction of the offence of
possession of a narcotic for the purpose of trafficking, without
taking into consideration the issue concerning his confinement in
prison, does not establish just or reasonable cause to discipline the
grievor. Since the actual conviction of this type of an offence is
not, in our view, a company related offence and is not just cause for
discipline, it therefore follows that the laying of a charge for such
an offence by the police likewise is not just cause for suspension.
In Re Air Canada and International Association of Machinists (1975), 10
LA.C. (2d) 346 Arbitrator F. Morin directed the reinstatement of a maintenance
mechanic who was discharged following his conviction for possession of
marijuana. He referred in his award to the Re Door-Oliver-Long case and
indicated that he had reviewed the facts before him independently of any
prejudices toward the use of marijuana. He added: "these prejudices are probably
due to the fact that the use of drugs is not socially accepted while the use of alcohol
is" .
Re Bay St. George Residential Support Board and Newfoundland
Association of Public Employees (1993), 31 LA.C. (4th) 364 (D. Alcock) involved
a relief caregiver for developmentally disabled individuals. He was discharged
after being convicted of assaulting a man who had been shouting profanities at him
and his wife, for which he was placed on probation. He had also been convicted of
trafficking one gram of hashish for which he received a three-month jail term. The
employer's executive director testified that there would always be a question about
whether the grievor could be trusted to exercise good judgement and also the
grievor's employment would damage the employer's reputation and its ability to
provide a quality care service to the community. Arbitrator Alcock concluded that
there was no evidence that the employer's reputation had actually been affected by
26
the grievor's convictions. Due to the grievor's three-month jail term he concluded
that a minimum penalty on the trafficking conviction would have to be no less than
a three-month suspension. After also taking into consideration the grievor's assault
conviction he decided that a four-month suspension would be appropriate. He
directed that the grievor be reinstated and compensated.
Another case referred to by the union advocate was Re School District No.
37 (Delta) and Canadian Union of Public Employees, Local 1091 (Tennant)
(1993),36 LA.C. (4th) 93 (P.D.K. Fraser). That case involved a school custodian
who was suspended after being charged with trafficking in cocaine. He was
discharged following his conviction. The evidence indicated that while under the
influence of alcohol he had purchased cocaine from a friend and sold it to an
undercover police officer without any profit to himself. The arbitration board
upheld the grievor's suspension but substituted a six-month suspension in place of
his discharge.
The union advocate also relied on the decision of the Grievance Settlement
Board in Gardiner 113/89 (B. Fisher). That case related to a corrections officer
who was convicted of taking a videotape from a store and given a conditional
discharge. The Corrections Ministry discharged him. The Board held that the
grievor should not have received any discipline for his off-duty theft of the
videotape. It did, however, impose a three-day suspension on him because when
he was caught he told store staff that he was a corrections officer, thereby bringing
his employment status into the situation.
DECISION
As noted above, I am satisfied that thegrievor was growing marijuana for
his personal use and to sell to others. The marijuana the police found on his farm
had a street value of up to $63,000. If the newspaper reports were accurate and the
marijuana seized by the police during the three raids on October 22, 2003 had a
total value at over $1 million, then the amount found at the grievor's farm
represented some 6% of the total. Apart from the fact the three police raids were
conducted simultaneously, and one of the others had involved his brother, there
was nothing in the evidence or the court transcripts to suggest that the grievor's
grow operation was part of some larger scheme.
The grievor was and likely still is a user of marijuana. The employer
referred to the grievor's employment record and suggested that his poor
27
performance had been due to his marijuana use and that this was a reason for not
reinstating him. The grievor's record indicates that at times he exhibited an
irresponsible attitude toward his work. His job performance in 1996 was
particularly egregious. At the time, however, the employer did not conclude that
the grievor's conduct had resulted from him being under the influence of
marijuana. Further, the employer chose to respond to his conduct either through
relatively minor discipline or through counseling. It would not be appropriate to
allow the employer to now go back and punish, or in some cases again punish, the
grievor for conduct that occurred in the past.
Mr. Retson in his evidence and employer counsel in his submissions voiced
concern that because of the grievor's marijuana usage he might in the future fail to
properly care for residents. Should the grievor report for work under the influence
of marijuana or use the drug at work Article 10.01 of the collective agreement
would entitle the employer to discharge him. Should the grievor demonstrate poor
performance for any other reason the employer would be entitled to discipline him,
including if appropriate to impose a penalty of discharge. It would not, however,
be appropriate for me to uphold the grievor's discharge based on speculation about
what he might do in the future.
The employer voiced a concern that due to the grievor's access to marijuana
he might share some of it with clients. I have no hesitation in saying that should
any employee provide marijuana or some other illegal intoxicant to a client this
would constitute grounds for discharge. There was not, however, any suggestion
in the evidence that the grievor had ever engaged in such conduct in the past. In
the circumstances it would not be appropriate to uphold a discharge based only on
a concern that he might do so in the future.
The grievor engaged in unlawful conduct. The judicial system addressed his
unlawful conduct and imposed a six-month conditional sentence on him to be
served in the community as well as a $5,000 fme. It is not the role of the employer
or an arbitrator to impose additional punishment for a breach of the criminal law.
An employer can take disciplinary action against an employee with respect
to criminal conduct that is employment related. As noted in the excerpts from
Brown & Beatty and the Emergency Health Services case set out above, this can
include discipline for off-duty conduct that impacts on an employer's legitimate
business interests. Most of the instances listed in the excerpts respecting the type
of off-duty conduct that would give an employer grounds for disciplining an
employee clearly have no application to this case. In particular, there was upthing
28
to suggest that the criminal charge and subsequent conviction of the grievor
rendered him unable to properly discharge his employment obligations, caused
other employees to refuse or be reluctant to work with him or inhibited the
employer's ability to efficiently manage its operations or efficiently direct its work
force. The remaining situation referred to in Brown and Beatty and Emergency
Health Services concerned conduct that would detrimentally affect an employer's
reputation. ,-
Mr. Retson in his evidence gave three reasons for suspending and
subsequently discharging the grievor. The first was to protect clients. This related
to concerns about possible future misconduct on the part of the grievor at the
workplace. The second was to give peace of mind to family and friends of clients.
This appears to have also related to concerns about possible future misconduct on
the part of the grievor. As already noted, there were times when the grievor
performed poorly and the employer addressed those instances in the manner it felt
appropriate at the time. There was not, however, any evidence to demonstrate that
the grievor came to work under the influence of marijuana, used marijuana at work
or shared it with a client. The employer did not have reasonable cause to remove
the grievor from the workplace on the basis that he might engage in such conduct
in the future.
Mr. Retson's concerns about family and friends might also have related to
his third concern, namely about the reputation of the Association. At issue is
whether the grievor's conduct could be said to have adversely affected the
employer's reputation and impacted on its legitimate interests such as to justify his
discharge.
Certain of the cases discussed above referred to emotions associated with
charges of possession and trafficking in narcotics. In the Emergency Health
Services case it was referred to as a serious plague on society. There has, however,
been an increased differentiation in the public's mind between the use of marijuana
and "hard" drugs. This was demonstrated by the Senate Special Committee
recommending that possession of marijuana be legalized as well as the nature of
the sentence imposed on the grievor at his criminal trial.
As noted by employer counsel there is a public service aspect to the
employer's operation. The employer, however, is not engaged in law enforcement
activities that might give rise to a special concern about the impact on its
reputation of any illegal conduct on the part of its employees. Members of the
public and friends and relatives of clients who were aware that the grievor had
29
been growing marijuana on his farm and selling some of the crop would probably
have taken a dim view of his illegal actions. The grievor's personal reputation
likely suffered in consequence of his conduct. In line with the reasoning of
Arbitrator O'Shea in the Door-Oliver-Long case, however, I do not believe that the
grievor's activities would have detrimentally affected the general reputation of the
employer or its employees so as to impact on the employer's business interests.
Having regard to the various considerations discussed above I conclude that
the grievor's illegal off-duty conduct did not give the employer just cause to
suspend him without payor to discharge him. In the circumstances I direct that he
be reinstated into his former position without any loss of seniority and that he be
compensated for his losses. Any compensation is to be subject to the general rules
of mitigation.
I retain jurisdiction to address any issues that might arise out of this award.
Dated this 8th day of June 2005.
£- ~~a/f
I Arb' ator