HomeMy WebLinkAboutRai 88-10-21 HEADNOTE
CAAT
OPSEU # 87X41
OPSEU LOCAL 0556
ARTICLE (S)
RAI, Savita (OPSEU) vs. George Brown College
Award dated 21 October 1988 (Jane Devlin)
The Board finds the College had just cause for dismissal of the
grievor, a teaching master, for work performance problems dating
from December 1983 until October 1987, related to alcoholism. The
Board notes differing view of arbitrators concerning post discharge
evidence of rehabilitation on the issue of just cause. The Board
rejected both views and followed Cooke and Ministry of Labour, a
GSB case, 22 LAC (2d) l, that post discharge evidence is only
relevant to whether the Board should exercise its remedial
jurisdiction in the event it finds just cause. In this case, the
Board finds the grievor has taken a first step towards
rehabilitation, but she has taken this step before without success
on several occasions. Furthermore, in this case the grievor had
not accepted responsibility for her alcoholism as late as August
1988, ten months following her dismissal. The Board declines
reinstatement in spite of 20 years of excellent service by the
grievor before problems started in 1983. Dismissal upheld.
GR:amb
IN THE MATTER OF AN ARBITRATION
BETWEEN:
GEORGE BROWN COLLEGE OF APPLIED ARTS
AND TECHNOLOGY
- AND -
ONTARIO PUBLIC SERVICE EMPLOYEES' UNION
GRIEVANCE OF SAVITA RAI
BOARD OF ARBITRATION:
JANE H. DEVLIN CHAIRMAN
RENE ST. ONGE COLLEGE NOMINEE
GERRY CAPLAN UNION NOMINEE
F. G. HAMILTON for the College.
R. N. NELSON for the Union.
AWARD
The Grievor, Savita Rai, was discharged from her
employment as a Teaching Master with the College on October 20,
1987 and the reasons for discharge are contained in the following
letter from J.G. Turner, Vice-President, Administration:
October 19, 1987
Ms. Savita Rai
133 Timberbank Blvd.
Agincourt, Ontario
M1W 2A2
Dear Ms. Rai:
On Friday, October 16, 1987, you arrived at
the College in a state in which you were unable
to function in a normal manner, apparently as a
result of alcohol consumption. So severe was
your condition that it was necessary to
physically assist you from the Staff Lounge to
the Health Centre.
For several years, the College has attempted
to assist you in resolving your personal problem
without success. You were warned that any
repetition of your inappropriate behaviour would
result in the termination of your employment.
In view of Friday's incident, I have no
alternative but to terminate your employment
with the College effective Tuesday, October 20,
1987.
You will be paid three month's salary in
lieu of notice.
Yours truly,
J.G. Turner
Vice-President
Administration
:e
cc: D. Light
S. Layton
E. Lord
R. Santin
K. Singh
Mrs. Rai's seniority with the College dates from 1963
and prior to 1983, it would appear that there were no complaints
about her teaching performance and that her work record was
excellent.
For purposes of the grievance before the Board, the
first significant event occurred in December of 1983. At that
time, the Grievor was teaching mathematics at the College's St.
James Campus and Dr. Shirley Holloway was the Chairman of the
Mathematics and Science Department. On December 16, 1983, Dr.
Holloway met with the Grievor and with Eric Lord and Amy
Thornton, the President and Chief Steward of the academic
bargaining unit, respectively. The purpose of the meeting was to
discuss a number of complaints which had come to Dr. Holloway's
attention concerning the Grievor's teaching performance. These
complaints apparently emanated from students and were conveyed to
Dr. Holloway by Bob Kotyk, the Chairman of Commercial
Studies/Secretarial Arts. The complaints involved matters such
as lateness, erratic attendance at class, forgetfulness and the
Grievor discussing her personal problems with students during
class time. Dr. Holloway testified that the substance of the
complaints was discussed at the meeting of December 16th, that
the discussion was productive and that it was agreed that the
Grievor would attempt to make a fresh start.
In January of 1984, a student complained that the
Grievor did not attend a class and in late February, Dr. Holloway
received another memorandum from Mr. Kotyk containing concerns
similar to those expressed previously. For the first time, there
was also a suggestion that a student had smelled alcohol on the
Grievor's breath during class. Mr. Kotyk concluded his
memorandum to Dr. Holloway by requesting that Mrs. Rai not be
assigned to instruct Secretarial Arts students in the future.
Dr. Holloway forwarded a copy of Mr. Kotyk's
memorandum to the Grievor and suggested that the Grievor seek
professional counselling if her instructional problems were the
result of personal difficulties. Dr. Holloway also indicated
that teacher training was available through the Staff Development
Department and Dr. Holloway personally offered to assist the
Grievor in any way she could.
In early March of 1984, Dr. Holloway received a
further memorandum from Mr. Kotyk and in discussing the
complaints raised in this memorandum with the Grievor, Mrs. Rai
suggested that she was not being given a fair opportunity to
defend herself and that if students had complaints, they should
be made to her directly. Mrs. Rai reiterated this view in a
memorandum to Dr. Holloway in early March and also requested that
Dr. Holloway, Mr. Kotyk and Mr. Lord attend her classes in order
to observe her teaching first hand. For the information of Dr.
Holloway, the Grievor also attached to her memorandum, a copy of
an evaluation which had been conducted of one of her classes on
February 28, 1984. The evaluator was extremely complimentary
about the Grievor's teaching ability and rated the lesson as
excellent.
Dr. Holloway did not actually have an opportunity to
observe a class taught by the Grievor because on March 20, 1984,
the Grievor injured her ankle and was off work for the balance of
the academic year.
In the fall of 1984, there were a number of occasions
on which the Grievor was late or absent from class on short
notice. In mid-December, Dr. Holloway received a complaint that
the Grievor had been late for class and that when she did arrive,
she had difficulty standing. Dr. Holloway testified, however,
that she was unable to locate the Grievor that day and so did not
have an opportunity to verify her condition. In any event, in
mid-December, Dr. Holloway was also advised that there had been
other occasions of absence from class of which she was not
previously aware and that the Grievor was alleged to have given a
student credit on a test paper for answers which were incorrect.
As a result of these complaints, Dr. Holloway spoke with Mr. Lord
who proposed a meeting with the Grievor. Dr. Holloway, however,
had some difficulty contacting the Grievor and as the end of term
was approaching, the meeting did not actually take place until
the new year.
In early January 1985, the Grievor attended a meeting
with Dr. Holloway, Mr. Lord and Miss Thornton. Dr. Holloway
reviewed the various complaints which had been made and the
Grievor indicated that she could not cope with her work as she
was experiencing emotional problems. Although the Grievor
mentioned that she had recently been divorced, she denied having
a drinking problem. In any event, Dr. Holloway testified that
she felt that if the Grievor could address her personal problems,
she would once again be an effective Teaching Master. As a
result, there was some discussion of the Grievor participating in
the Employee Assistance Programme. This Programme was the
product of an agreement between the College and the Union and is
designed to assist employees experiencing health or personal
difficulties to identify and resolve their problems. Employees
may participate in the Programme voluntarily but, in the event
that progress is not made, mandatory conditions may be imposed.
In this case, however, no such conditions were imposed at the
m~eting in early 1985, although all present agreed to assist the
Grievor in 'seeking a solution to her problems.
During January, February and early March of 1985, the
~rievor's pattern of intermittent lateness and absenteeism
continued and there was at least one occasion on which the
..~Grievor did not attend class and did not notify the College that
. she would be absent. In addition, on February 25th, the Grievor
'~was discovered asleep in the staff lounge when her class was
Scheduled to begin and she had to be wakened by other faculty
members. Although the Grievor then went to class, she evidently
did not remain there for the entire teaching period.
At approximately 1:00 p.m. on March 8, 1985, Dr.
Holloway was advised that a number of students had complained
that the Grievor had been fifteen minutes late for class and that
when she did arrive, she was staggering and her breath smelled of
alcohol. Dr. Holloway proceeded immediately to the Grievor's
classroom where she found Mrs. Rai sitting at the side of the
room, propped on one side of her chair. She was not teaching
and, according to Dr. Holloway, she looked unwell. Dr. Holloway
then went in search of Mr. Lord or Miss Thornton but as neither
was available, she contacted Ray Santin, the Dean of the Academic
Division and advised him that she intended to remove the Grievor
from class. As Dr. Holloway returned to the Grievor's class, she
found the students putting on their coats and observed the
Grievor discussing her personal problems with them. After the
students left, Dr. Holloway suggested to the Grievor that she was
drunk, which the Grievor did not deny. Dr. Holloway then
instructed the Grievor not to return to active teaching duties
the following week and advised her that she would be considered
on sick leave.
Following the incident of March 8, 1985, another
Teaching Master was assigned to the Grievor's classes and the
Grievor's request to return to work was denied until such time as
she could resolve her personal problems. The College did,
however, give the Grievor permission to use her office on campus
during her absence.
On April 1, 1985, Malcolm Sykes, the College Director
of Human Resources wrote to the Grievor reviewing events to date
and outlining the nature of the Employee Assistance Programme.
Mr. Sykes advised the Grievor that as repeated attempts to assist
her had been unsuccessful, it had become necessary to initiate
mandatory conditions. In this regard, Mr. Sykes indicated that
an appointment had been made for the Grievor to see Dr. Ian
Hector, the College's Medical Consultant on April 25th and that
Miss Thornton was prepared to accompany the Grievor to that
appointment. Until April 25th, the Grievor was to be considered
on leave of absence with pay and thereafter, the College would
review the situation based upon an assessment from Dr. Hector.
Mr. Sykes further informed the Grievor that she was to refrain
from using her office on campus until further notice. (Evidently
some Teaching Masters were disturbed by the fact that the Grievor
was using her office on a regular basis and yet was not required
to perform teaching duties.) Finally, the Grievor was advised
that failure to comply with the conditions set out in the letter
would leave the College no alternative but to terminate her
employment on the grounds that she was unable to carry out her
assigned duties and would not engage in a remedial programme to
assist in her return to work.
The Grievor evidently attended the appointment with
Dr. Hector and following an automobile accident in the spring of
1985, she remained on sick leave for the balance of the academic
year. In July of 1985, the Grievor was advised that the
mandatory conditions previously imposed were to be removed and
Ghat she was to return to regular teaching duties in September of
that year. The Grievor was also informed that Miss Thornton and
Mr. Sykes, as representatives of the Employee Assistance
Programme, would continue to monitor her performance and that she
was expected to conduct herself in a professional manner. In the
event that the Grievor did not do so, she was advised that the
College would be compelled to terminate her employment.
On July 31, 1985, Mr. Santin wrote to the Grievor to
inform her that when she returned to work in September, she would
be assigned to the Casa Loma campus. The Grievor objected to
this transfer, however, and testified that, in her opinion, it
simply created additional stress. Mr. Santin, on the other hand,
testified that he believed that the stress associated with such a
transfer was offset by the fact that it would provide the Grievor
with an opportunity to make a fresh start.
In September of 1985, John Taylor was the Chairman of
the Liberal Studies Department at the Casa Loma campus and as
such, he was responsible for the Upgrading Department to which
the Grievor was assigned. In this Department, the students range
in age from 18 to 55 and the curriculum is delivered by
individual learning module. Classes are generally small; the
students work at their own pace and the Teaching Master acts
primarily as a facilitator. As the provincial government
sponsors some students, there is a requirement for Teaching
Masters in the Upgrading Department to attend progress meetings
With Manpower Counselors to review student performance. An
assignment to the Upgrading Department is not generally
considered to be onerous for a Teaching Master and it is for this
reason that Mr. Santin testified he chose this particular
assignment for the Grievor.
In mid-October, 1985, Mr. Taylor learned that the
Grievor had been late for four classes that month as a
consequence of which he instructed her to report daily to Kaye
Singh, the Mathematics Co-ordinator. The Grievor testified that
she found this to be a humiliating experience and caused her to
believe that, despite previous assurances to the contrary, she
would not be treated like other faculty members.
In the fall of 1985, Mr. Taylor testified that he
heard a number of complaints regarding the Grievor's teaching
performance and in December, he attended a meeting at which he
found the Grievor to be disoriented and he detected an odour of
alcohol on her breath. When he questioned the Grievor as to
whether she had been drinking, the Grievor replied that she had
eaten some strong Indian food.
In early 1986, Mr. Taylor forwarded a memorandum to
Mr. Santin outlining his concerns with regard to the Grievor.
The Union, however, objected to the content of this memorandum as
a result of which the College agreed to remove it from Mrs. Rai's
personnel file. For this reason, the Board declined to allow the
memorandum to be introduced into evidence.
On March 5, 1986, a meeting was held involving Mr.
Santin, Mr. Taylor, the Grievor and Miss Thornton. At the
meeting, the College reviewed its concerns and the Grievor was
advised that the College intended to impose a period of "close
monitoring". This was to take the form of observation of the
Grievor's classroom performance on the part of Mr. Taylor and, in
addition, discipline was to be imposed to address incidents of
lateness, absenteeism and perceived incapacity on the part of the
Grievor to carry out her teaching duties. This was to involve a
five-step disciplinary process which would culminate in
dismissal. The course to be followed by the College was also
confirmed in a memorandum to the Grievor from Mr. Santin dated
March 10, 1986.
With regard to the monitoring of the Grievor's
classroom performance, Mr. Taylor prepared two reports which were
introduced into evidence. The first report is dated April 7,
1986 and was based upon Mr. Taylor's observation of seven classes
taught by the Grievor. The major concern expressed in the report
related to the Grievor's tendency to publicly criticize and
embarrass students. The Grievor testified that she disagreed
with Mr. Taylor's criticism and in respect of one particular
incident, suggested that where lateness is a recurring problem,
it may be appropriate to challenge a student in front of other
members of the class.
The second monitoring report is dated May 26, 1986
and was based upon Mr. Taylor's observation of six classes
conducted by the Grievor. Mr. Taylor noted that very loud and
public interaction with students continued to occur in
approximately one-half of the classes which he observed. During
the remaining classes, Mr. Taylor found that the Grievor was
making a conscious effort to maintain a quieter presence in the
classroom. Mrs. Rai also disagreed with the criticism made by
Mr. Taylor in this report and, in fact, suggested a number of
times in her evidence before the Board that Mr. Taylor engaged in.
a pattern of personal harassment against her.
The first step in the disciplinary process outlined
to the Grievor in the meeting of March 5, 1986 was imposed on May
7th of that year. At that time, the Grievor received a
disciplinary memorandum as a result of being discovered asleep in
the staff lounge at 9:00 a.m. when she was scheduled to be in
class. Although the Grievor admitted falling asleep in the staff
lounge, she advised Mr. Taylor that she had been up all night
trying to place a long distance call to her mother in India who
was ill.
Subsequently on May 13, 1986, Mr. Taylor issued a
memorandum to the Grievor regarding a number of absences in April
and early May and noting a pattern of Friday absenteeism. The
Grievor was advised that in future, all absences due to illness
would have to be substantiated by a medical certificate.
Although there were three further absences in May for which Mr.
Taylor requested certificates, he testified that his request was
complied with in respect of some, but not all, absences.
The second disciplinary incident occurred on May 21,
1986 at which time the Grievor failed to attend a scheduled
progress meeting as a result of which, she was suspended for one
day with pay. In this instance, the Grievor responded with a
memorandum to Mr. Taylor indicating that she had met with Miss
Thornton on May 21st and had simply forgotten that a progress
meeting had been scheduled. She also expressed the view that
other Teaching Masters had missed meetings, that no action had
been taken against them and that she was being harassed.
On June 13, 1986, the Grievor was suspended for one
day without pay, again for failing to attend a scheduled progress
meeting. In respect of this incident, the Grievor testified that
she understood that Mr. Taylor was to be away on the day of the
meeting and that she was not informed that another faculty member
would be taking his place. The Grievor also testified that
alcohol played no part in this or any of the other incidents for
which the College imposed discipline. Although the Grievor
disagreed with the action taken in each case, she conceded that
no grievances were filed.
Miss Thornton, however, did take issue with the
action taken by the College in the spring of 1986 and outlined
her concerns in a memorandum to Mr. Santin. Miss Thornton
suggested to Mr. Santin that an agenda had been set for the
Grievor's dismissal in June of that year and that the College
was actually harassing Mrs. Rai rather than assisting her. At
the hearing, Miss Thornton also testified that if the College is
aware of an employee's referral to the Employee Assistance
Programme, discipline is generally held in abeyance. In
addition, Miss Thornton produced a document entitled Employee
Assistance Programme, which is dated 1986 and which provides that
upon formal referral to the Employee Assistance Programme, normal
disciplinary procedures are suspended. Finally, Miss Thornton
testified that in the spring of 1986, she accompanied Mrs. Raj to
meetings with the College in her capacity as a representative of
the Employee Assistance Programme and not as a Union Steward.
During the summer of 1986, Alan Quaile, a Union
representative who was assigned to assist the Grievor during Miss
Thornton's absence on vacation, approached Mr. Taylor and
suggested that monitoring the Grievor's classes was stressful for
her and he requested that it be discontinued. Following
discussions with-Mr. Santin, Mr. Taylor acceded to Mr. Quaile's
request. During the fall of 1986, the Grievor was not involved
in any incidents warranting discipline and again at the request
of Mr. Quaile, the College advised the Grievor that minor
infractions in the areas of punctuality and attendance would not
result in the College invoking the next step in the disciplinary
process. Mrs. Rai was reminded, however, that more serious
performance deficiencies would have that effect.
On March 11, 1987, Mr. Taylor received a call to the
effect that the Grievor was in her classroom and in some
distress. Mr. Taylor proceeded to the Grievor's class where he
found Mrs. Rai sitting in chair, bleeding from the knee. She was
disoriented and Mr. Taylor testified that he detected a strong
odour of alcohol on her breath. The Grievor was assisted to the
Health Centre and as a result of this incident, she was suspended
for two days without pay.
The Grievor testified that on the morning of March
11, 1987, she slipped on some ice in the parking lot and that she
did not have time to go to the Health Centre, as she would have
been late for class. The Grievor denied drinking that morning
although she conceded that she may have been suffering the
effects of drinking the previous evening. In any event, the
Grievor testified that the real cause of her distress on the
morning of March llth, was the fact that she had been informed of
a lawsuit against her for two million dollars as a result of a
car accident in which she had been involved two years previously.
On March 23, 1987, Sally Layton, who succeeded Mr.
Sykes as Director of Human Resources, advised the Grievor that
she was required to attend a three-week residential programme at
the Addiction Research Foundation. The programme was to begin on
April 19th and during the programme, Mrs. Rai was to be
cOnsidered on leave of absence with pay. Prior to April 19th,
the Grievor took vacation for some period and was also given a
non-teaching assignment in the Human Resources Department.
The Grievor enrolled in the Addiction Research
Foundation programme on April 19th and was discharged for
non-participation on April 27th. In particular, the Grievor
refused to attend gym sessions; she was late for a number of
other sessions and she maintained throughout that she did not
have an drinking problem. In respect of her refusal to attend
gym, the Grievor testified that she previously suffered an injury
to her ankle and would have risked re-injury if she were to be
involved in sports. Despite this, however, the Grievor testified
that she was advised that her participation was mandatory. The
Grievor also explained that having to wait in line at the Income
Tax Office to obtain an income tax form caused her to be late for
one of the other sessions.
On May 6th, 1987, Mr. Turner wrote to the Grievor
informing her that successful completion of the Addiction
Research Foundation programme or a similar programme was a
condition both of her return to active teaching duties and of her
continued employment. The Grievor was, therefore, suspended
without pay effective May 15, 1987.
Sometime subsequent to May 6, 1987, a meeting took
place involving Mrs. Layton, the Grievor and a representative of
the Union. At the meeting, the Grievor indicated that she did
not have a problem with alcohol and that for this reason, the
Addiction Research Foundation programme had not assisted her. A
discussion then took place concerning other arrangements that
might be made to fulfill the conditions of the letter of May 6th.
As a result of this discussion, the Grievor was referred to Dr.
Hector on June 7, 1987. At that time, the Grievor advised Dr.
Hector that she did not did not suffer from alcohol dependency,
nor apparently was she experiencing any other problems for which
she required assistance. The Grievor testified that she made
these statements as she did not feel comfortable discussing her
personal problems with the College's Medical Consultant.
Further discussions then ensured with Mrs. Layton
with regard to the means by which the Grievor could satisfy the
requirements of Mr. Turner's letter. It was ultimately agreed
that the Grievor would meet regularly with her personal
Physician, Dr. Sai and with Mrs. Layton to discuss her progress.
On the basis of this agreement, the Grievor was returned to
active teaching duties effective July 13, 1987.
Over the course of the summer of 1987, the Grievor
met on a number of occasions with Mrs. Layton who testified that
all appeared to be going well. The Grievor also met with Dr. Sai
who prescribed Antibuse, although the Grievor testified that she
did not find this particular treatment helpful. The Grievor
explained that she was seeking a treatment which would alleviate
her desire to drink and that Antibuse simply made her ill when
she did consume alcohol. As a result, the Grievor testified that
in September of 1987, she returned to the Addiction Research
Foundation and was scheduled for tests in early October.
On October 16, 1987, Mrs. Layton was approached on
her way to a meeting and advised that the Grievor was drunk and
had passed out in the staff lounge. With Mr. Turner and Mr.
Lord, Mrs. Layton proceeded to the lounge where she found a
number of faculty present and the Grievor asleep on the couch.
Mrs. Layton testified that it took some time to waken the Grievor
and that when she managed to do so, the Grievor's eyes were
glazed and she smelled strongly of alcohol. At first, the
Grievor appeared not to recognize Mrs. Layton. Mrs. Layton then
assisted the Grievor to the door of the staff lounge where Mr.
Turner and Mr. Lord assisted her to the Health Centre.
Mrs. Layton spent some time with the Grievor at the
Health Centre and testified that the Grievor admitted that she
had been drinking and that she had not been seeing her doctor
regularly as previously agreed upon.
Mrs. Layton later met with Mr. Turner and discussed
the course of action to be taken by the College. Mrs. Layton
testified that she and Mr. Turner reviewed the efforts made by
the College to assist the Grievor, the fact that the Grievor had
not responded positively to these efforts and the College's
responsibility to its students and to other 'faculty. Taking
these factors into account, Mrs. Layton testified that it was her
recommendation that the Grievor's employment with the College be
terminated. The Grievor was advised of her termination by the
letter of October 19, 1987 which is set out earlier in this
award.
The Grievor acknowledged that throughout the course
of her employment with the College, she did not at any time admit
that she was an alcoholic. She testified that she began drinking
in 1982 or 1983 at which time she was experiencing a number of
personal problems. In 1982, she was divorced from her husband of
twenty-five years and her sister committed suicide. In 1983, the
Grievor's father and father-in-law both passed away. In
addition, at the end of 1983, the Grievor's son-in-law came to
Canada from India and as he could not get a position as an
intern, the Grievor assumed responsibility for his support as
well as for the support of herself, her two children and a
grandchild. Between 1983 and 1985, the Grievor voluntarily
participated in the Employee Assistance Programme and testified
that she discussed her personal problems with Amy Thornton from
time to time. In 1985 and 1986, the Grievor attended meetings of
Alcoholics Anonymous and in May of 1986, at the insistence of her
family, she enrolled in a programme at the Addiction Research
Foundation which involved attending weekly meetings. The Grievor
did not complete the programme, however, as she testified that
she had to travel to the United States to be with her daughter
Who had recently given birth to a child.
Following the termination of her employment in
October of 1987, the Grievor again approached the Addiction
Research Foundation. Initially, she testified that she could not
enroll in the residential programme which she had attended
previously because she was no longer employed. She subsequently
conceded, however, that she was refused admission because she had
been discharged from the programme previously. In any event, the
Grievor was referred to the Jean Tweed Centre and upon being
advised that there were no openings until January, both the
Grievor and Miss Thornton approached Mrs. Layton. Mrs. Layton
testified that she contacted the Jean Tweed Centre on the
Grievor's behalf to assist her in obtaining an early admission
but that this was not intended to affect the action taken by the
College to terminate the Grievor's employment.
In mid-November, 1987, the Grievor enrolled in the
four-week residential programme at the Jean Tweed Centre which
she completed in mid-December. By the end of December, however,
the Grievor conceded that she was drinking once again. The
Grievor expressed the view that she was simply too devastated by
the loss of her employment to benefit from treatment at that
time.
On December 31, 1987, the Grievor was drinking in a
Parked vehicle when she was approached by a police officer and
charged with having care and control of an automobile while under
the influence of alcohol. The Grievor was scheduled to appear in
court on February 21, 1988 but failed to do so as she testified
that she was angry that she had been charged when her vehicle was
not even in motion. As a consequence of the Grievor's failure to
appear on February 21, 1988, a bench warrant was issued. In
April 1988, the Grievor was again charged with having care and
control of an automobile while under the influence of alcohol and
as a result of the outstanding bench warrant, she was arrested
and spent some time in jail. The Grievor pleaded guilty to the
various charges against her in late June of 1988 and was
sentenced to attend a residential programme at Bellwood Health
Services, a recognized treatment centre for alcohol and drug
dependency.
Margaret Kay, the Co-ordinator of Nursing and Patient
Care at Bellwood, testified that the Grievor completed the
four-week residential programme in July of 1988 and at the time
of the conclusion of the hearing in late August of 1988, the
Grievor had attended a number of weekly sessions as part of a
five year follow-up programme. Mrs. Kay testified that to the
best of her knowledge, the Grievor has been abstinent and that
she is now able to return to work on a full-time basis. As long
as the Grievor remains in the follow-up programme, Mrs. Kay
testified that there is hope that she will be able to control her
alcoholism.
It was the submission of Mr. Hamilton, on behalf of
the College, that prior to the Grievor's discharge, there was
significant lateness and absenteeism and a number of occasions
when the Grievor attended work under the influence of alcohol.
While admittedly the Grievor was a long service employee, Mr.
Hamilton contended that she resisted numerous efforts on the part
of the College to assist her and, in fact, throughout the course
of her employment, she never did admit her dependency on alcohol.
It was submitted that the action taken by the College must be
assessed on the basis of events as they existed in 1987 and, in
these circumstances, the College clearly had cause to discharge
the Grievor. Even if the Board were to consider post-discharge
evidence of rehabilitation, however, Mr. Hamilton suggested that
the Grievor has had little success with treatment programmes to
date and that she has not accepted full responsibility for her
alcoholism. As a result, if the Grievor were to be reinstated
there would, in all likelihood, be a repetition of previous
misconduct. Given the College's responsibility both to its
students and to other faculty, Mr. Hamilton requested that we
dismiss the present grievance.
It was the submission of Mr. Nelson on behalf the
Union that the Grievor has twenty-four years of service with the
College and that prior to 1983, she had an excellent record. Mr.
Nelson conceded that it is only recently that the Grievor has
come to terms with her alcoholism although he suggested that
rehabilitation is a lengthy process and that the Grievor has made
a strong beginning. In addition, Mr. Nelson submitted that in a
number of respects, the procedure followed by the College was
flawed and he suggested that we ought to take this into account
in framing an appropriate remedy. In all the circumstances, Mr.
Nelson requested that we reinstate the Grievor on the condition
that she continue treatment at Bellwood and that she abstain from
alcohol. Mr. Nelson contended that the College would not be
prejudiced by such an order as the College would have the benefit
of the Grievor's long service and experience and yet at the same
time, would be protected by the conditions imposed.
Dealing firstly with the procedure followed by the
College, Mr. Nelson submitted that the imposition of discipline
in the spring of 1986 was inappropriate given the Grievor's
participation in the Employee Assistance Programme. A number of
documents, however, were introduced into evidence dealing with
the Employee Assistance Programme and only in the document dated
1986 is there any reference to the imposition of discipline being
suspended. This document was not signed by the College and the
Union and the evidence is simply not sufficient to find that it
was approved and implemented by the parties. On this basis, we
cannot conclude that the College was constrained from
disciplining Mrs. Rai in the spring of 1986.
Secondly, Mr. Nelson submitted that the College acted
imDroperly in imposing discipline given that the memorandum from
Mr. Taylor to Mr. Santin was ultimately removed from the
Grievor's personnel file. We must also reject this argument,
however, as discipline was not imposed in response to any events
outlined in Mr. Taylor's memorandum but was imposed in response
to misconduct in which the Grievor engaged subsequently.
Moreover, that discipline,- it will be recalled, was never
grieved.
Finally, Mr. Nelson contended that the College failed
to allow the Grievor an opportunity to appear before the Policy
Administration Committee. In this respect, Mr. Nelson referred
to a College policy on drugs and alcohol which provides that if
an employee is terminated as a result of poor performance
attributable to alcohol or drugs, the case must be presented to
the Policy Administration Committee. The particular policy
referred to, however, is dated December 1, 1980 and was
introduced into evidence by Miss Thornton, who was aware that
some amendments to the policy were required and who could not be
sure that the policy is even currently in effect. It should also
be noted that no reference was made to a requirement to appear
before the Policy Administration Committee until final argument
by the Union. In all the circumstances, therefore, it cannot be
concluded that the procedure followed by the College was improper
and as a result we turn to the merits of Mrs. Rai's grievance.
Complaints about the Grievor's performance surfaced
as early as 1983 and leaving aside the substance of the
complaints about which the Board heard no direct evidence, the
College responded by offering to assist the Grievor. Given an
excellent work record of some twenty years, the College evidently
recognized that the Grievor was experiencing some personal
difficulty which was manifesting itself in absenteeism, lateness
and poor work performance. As acknowledged by Mrs. Rai at the
hearing, she consistently denied that she was an alcoholic and
after numerous attempts to assist the Grievor in addressing and
resolving what she described as personal problems, the College
imposed discipline in the spring of 1986. Although alcoholism is
now generally recognized to be an illness and denial is a common
feature of that illness, nevertheless, where an employee denies
alcohol dependency, in our view, an employer cannot be faulted
for responding to the employee misconduct which results by the
imposition of disciplinary sanctions. In this case, the Grievor
also resisted the College's efforts to obtain treatment for her
and in addition to intermittent absenteeism and lateness, we find
that on a number of occasions the Grievor attended work suffering
from the effects of alcohol and unable to carry out her teaching
duties. The Grievor was repeatedly warned that if she did not
seek treatment and that if her performance did not improve, her
employment would be terminated. It must be concluded, therefore,
that on the basis of events as they existed in October of 1987,
the College had cause to terminate the Grievor's employment.
As indicated earlier in this award, the Union offered
evidence of the Grievor's efforts at rehabilitation subsequent to
October of 1987 and the issue is whether the Board has
jurisdiction to consider this evidence. This issue has been the
subject of debate among arbitrators and in a series of awards
referred to by Mr. Hamilton, it has been held that the assessment
as to the likelihood of the employee fulfilling his employment
obligations in the future, is to be made as of the date of
discharge: Re Corporation of the City of Sudbury and
Canadian Union of Public Employees, Local 207 (1981) 2 L.A.C.(3d)
161 (P.C. Picher) and Re Canada Post Corp. and Public Service
Alliance of Canada (1986) 22 L.A.C.(3d) 236 (Hinnegan). In these
awards, post-discharge evidence of rehabilitation has not been
considered on the basis that such evidence could invalidate the
employer's decision to discharge although this decision was quite
proper at the time it was made.
In contrast to the views expressed in the awards
referred to by Mr. Hamilton, other arbitrators have determined
that it is quite appropriate to consider evidence of treatment
and rehabilitation subsequent to the date of discharge: Re
British Columbia Telephone Company and Telecommunication
Workers' Union (1978) 19 L.A.C.(2d) 98 (Gall); Re Canada Post
Corporation and Canadian Union of Postal Workers (1982) 6
L.A.C.(3d) 385 (Burkett) and Re Windsor Western Hospital Centre
Inc. (I.O.D.E. Unit) and Service Employees' Union, Local 210
(1984) 19 L.A.C.(3d) 151 (Brandt). The rationale for this
approach is that if the employee has rehabilitated himself
subsequent to the date of discharge, then the disorder
precipitating the termination has been corrected and it would not
be fair or just to ignore this circumstance. The remedy, it has
been said, can be tailored to take into account the point in time
when the employee would have been in a position to fulfill his
employment obligations.
In our view, for the purpose of determining cause for
discharge, a Board of Arbitration must consider the events as of
the date upon which action is taken by the employer. Were this
not the case, as suggested in the awards referred to by Mr.
Hamilton, the Employer's decision would be subject to constant
review. At the same time, the Board has remedial jurisdiction to
modify the penalty of discharge and, in determining whether to
exercise this jurisdiction, the Board may consider evidence of
rehabilitation which occurs subsequent to the date of discharge.
This approach was adopted by the Grievance Settlement Board in Re
Cook and the Crown in Right of Ontario (Ministry of Labour)
(1979) 22 L.A.C.(2d) 1 in which the Board considered evidence of
rehabilitation in determining whether to exercise its discretion
pursuant to s.18(3) [now s.19(3)] of The Crown Employees
Collective Bargaining Act. That section Provides that where the
Board determines that a disciplinary penalty or dismissal is
excessive, it may substitute such other penalty for the
discipline or dismissal as it considers just and reasonable in
all the circumstances. In dismissing an application for judicial
review of the Board's decision in Re The Queen in Right of
Ontario and Grievance Settlement Board et al. (1980) 107
D.L.R.(3d) 599 (Ont. H.Ct.), Mr. Justice Osler, who delivered the
judgment of the Court, had this to say:
I therefore find that the board was within the
power given to it by statute when it determined
that the penalty of dismissal in the instant
case was excessive and when it substituted a
period of suspension without pay, coupled with a
form of probation requiring continued treatment
for alcoholism. The Ministry submitted that the
board had no right to consider events occurring
after the discharge and that it did in fact take
into account the grievor's actions in seeking
treatment and attending meetings and such
activities as were required. As is well known,
in exceptional cases when a convicted person has
made significant progress towards reformation or
rehabilitation while awaiting the hearing of an
appeal, the Court of Appeal will take such
matters into account and modify a sentence
accordingly. I can see nothing wrong or beyond
its power when the grievance settlement board
acts upon similar principles.
Although the Grievance Settlement Board is constituted pursuant
to The Crown Employees Collective Bargaining Act, Article
ll.05(g) of the Collective Agreement before the Board is similar
in all material respects to Section 19(3) of that Act.
The issue, then, is whether, taking into account the
evidence of events which occurred subsequent to October of 1987,
it is appropriate to modify the penalty of discharge imposed by
the College. As indicated earlier, the hearing concluded in late
August of 1988, almost one year subsequent to the date of
discharge. At that time, the Grievor had completed a four-week
residential programme at Bellwood which she had been ordered to
attend by the court, presumably as a term of her probation. The
Grievor had also attended a number of weekly sessions as part the
five year follow-up programme. At the hearing, the Grievor
admitted that she is an alcoholic and testified that she has
abstained from alcohol since April of 1988 and that she intends
to complete the follow-up programme at Bellwood. There can be no
question that the Grievor has taken an important first step in
the process of rehabilitation although it will be recalled that
this is a process which she has undertaken before, previously
without success. Moreover, we must agree with Mr. Hamilton that
even in August of 1988, the Grievor had not accepted
responsibility for her alcoholism. In many cases, she blamed
others for what occurred, offered excuses for her behavior and
did not appear to appreciate the seriousness of having attended
class under the influence of alcohol or the effect of this
conduct on her students.
Hopefully, the Grievor will be able to bring her
alcoholism under'control but at this point, we cannot say with
any degree of confidence, that if the Grievor were returned to
teaching, there would not be a repetition of what occurred
previously. The Grievor would not be returning to a workplace in
which constant supervision is either appropriate or reasonable
and the consequences to other faculty and students of the Grievor
attending work under the influence of alcohol, cannot be ignored.
The Grievor has undertaken treatment in the past which she has
not completed and has only recently begun again, the lengthy
process of rehabilitation. In August of 1988, Mrs. Kay put it no
more strongly than there is hope that the Grievor will be
successful.
A case such as this is extremely difficult,
particularly as the Grievor is a long service employee and for
many years, her work record was excellent. Undoubtedly, it was
because of the Grievor's long service that the College persisted
over a number of years in its efforts to assist the Grievor in
addressing and resolving her problems. In October of 1987,
however, after repeatedly advising the Grievor of the
consequences of continued misconduct and her failure to obtain
treatment, the College had cause to terminate Mrs. Rai's
employment. While some positive steps have now been taken toward
rehabilitation, given the lengthy period which has elapsed since
the date of discharge and the fact that the Grievor still does
not accept responsibility for her alcoholism, we do not find that
there is an appropriate basis upon which to modify the penalty
imposed.
In the result, and for the reasons set out, the
grievance is hereby dismissed.
DATED AT TORONTO, this 21st day of October, 1988.
Chairman
"Rene St. Onge"
College Nominee
See dissent attached
Union Nominee
DISSENT: SAVITA RAI GRIEVANCE
October 8, 1988
Savita Raj is entitled to a conditional re-in.statement. As
the Chair states, it is legitimate to take into account events
subsequent to the dischsrge. The key event during that period was
clearly the First successful compl etetion of a rehabilitation
program in the five years of Ms. Rai's alcoholism.
According to Margaret Kaye, coordinator of nursing and
patients' care at Bellwoods and the only medical authority to
testify at the hearing, Ms. Rai had successfully completed a
four-week residential program and had already moved into the
follow-up phase of the program. "As far as I'm concerned," Kaye
stated, "she can retdrn to work now." And in response to the
question: "Will it be a long time before we know she's okay?",
Kaye responded forthrightly: "No, we're hopeful."
This situation logically leads to the conclusion set out in
Re. B.C.Telephone Company and telecommunication Workers: "While
the past record and culminating incident are of critical
importance...the Board must also consider the facts that Mr. K.
entered a treatment centre after he was discharged and that Mr.
J., director of the treatment centre, testified that it was his
opinion that Mr. K's chances of rehabilitation are good."
Even if no one can assert with confidence that Ms. Rai will
never drink again, we have Re. Windsor Western Hospital and
Service Em'ployees Union: "We cannot agree with the suggestion
that before reinstatement can be effected, the underlying causes
for the original absenteeism must have completely disappeared."
Ms. Kaye says Ms. Rai "can return to work now". According to
Re, Canada Post and CUPW, "If it is proven at an arbitration
hearing that an employee who has been terminated for blameless
absenteeism is likely to be regular in attendance in the future,
it seems to me that the proper balan¢ingii'~Y i. nterests requires
that the employee be returned to his employment, The prejudice to
an employee who is capable of regular attendance in the future
but is nevertheless terminated is substantial. On the ,other hand,
it is difficult to understand how an employer is prejudiced by
maintaining in employment an employee of possible long standing
who is capable of regular attendance in the future."
It is of course true that Ms. Rai was not terminated for
innocent absenteeism strictly speaking. On the other hand, her
case sounds remarkably like. the one described in Burkett (above).
"The employee...has been absent from work for reasons beyond his
control. He has suffered some mental or physical infirmity that
has prevented him from being regulaar in attendance...It would
not be fair or just to permit the termination of an employeee for
reasons which he is powerless to control ...if the prognosis is
that tl~e disorder prec ipitat in~ tl~e termination has been
corrected or is likely to disappear within the foreseeable
future."
There can be no denying the disruption Ms. Rai caused the
College during those years. But it is surely at least a plausible
analysis to suggest that her dismissal was the beginning of
enlightenment for her. Unfortunately, she had by no means yet hit
bottom, the point at which recognition of one's true state begins
to dawn. That cathartic moment took several further public
humilations: arrest, trial, the failure of another rehabilitation
attempt. Finally, finally, comes the moment when she recognizes
that she is a helpless alcoholic, a self-revelation that provides
the strength to complete the first important phase of the
Bellwoods program --the longest she had gone in ages without
drinking.
Tha. t she still refuses to take the blame for many of the
unhappy events in the previous years does not demonstrate that
she is not "ready" to return to work. It simply, and naturally,
shows that the road to full recovery is a long one, but that she
has made a crucial beginning. Crucial enough for Margaret kaye to
have confidence that she can resume work. What qualified witness
testified before us that she is NOT qualified to return to work?
It is true that the College was generous in its treatment of
Ms. Rai during her dark years. Why would it be asking so m'uch'of
the College to give one final chance to a 24-year employee?
Burkett's words again: "The prejudice to an employee who is
capable of regular attendance in the future but is nevertheless
terminated'is substantial. On the other hand, it is diificult to
understand how an employer is prejudiced..."
For the College, the worst possible consequence of
conditional re-instatement is that Ms. Rai relapses, causes an
unfortunate incident, and is terminated once for all. But for Ms.
Rai, the "prejudice" is incalculable. At her age and with her
record, no other teaching position is possible, It may even be
that no other employment of any kind is possible. The harshness
of that possibility far transcends the appropriate penalty for
the difficulty that her sickness caused the College for four
years.
While precedents on this matter undeniably conflict, there
are at least a number that make conditional re-instatement a
plausible decision in this case. When one looks at the human
dimension of the case, that should make conditional re--
instatement an irresistible decision. Ms. Rai deserves one more
chance before she is discarded to the fortunes of an unforgiving
society.
Gerald Caplan ,.,..-'-"x. -' ·