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HomeMy WebLinkAbout2005-2409.Cahill.06-08-14 Decision Crown Employees Commission de Ni Grievance Settlement reglement des griefs Board des employes de la Couronne ~ Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto. Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2005-2409 UNION# OLB578/05 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees Umon (CahIll) Union - and - The Crown III RIght of Ontario (LIquor Control Board of Ontano) Employer BEFORE Nimal V DIssanayake Vice-Chair FOR THE UNION Kourosh Farrokhzad Bamster and SolicItor FOR THE EMPLOYER Dan Palayew Ogilvy Renault LLP Bamsters and SOhCItorS HEARING January 9 and August 1,2006 2 DeCISIOn ThIS deCISIOn relates to a dIscharge gnevance dated October 18, 2005 filed by Mr PatrIck Cahill ("gnevor") The gnevor had been prevIOusly dIscharged by the employer on November 13, 2003 He grIeved, and folloWIllg a heanng before thIS Board, he was reIllstated subject to certaIll stnct terms akIll to a last chance agreement. (See declSlon dated August 11, 2005 III GSB File # 2003-3099) Pursuant to that decIsIOn the employer reIllstated the grievor III the posItIon of Manager of a "D" LCBO Store III CardIllal, Ontano Apart from the locatIon, that posItIOn was the same as the one he had occupIed at the tIme of hIS dIscharge F OllowIllg a three week retraining, he started at the CardIllal Store on September 13, 2005 He worked on the 13th, 14th, 15th and 16th and then was off on bereavement leave and an approved leave of absence wIthout pay till October 4t\ 2005, because of the death of hIS mother overseas. Upon hIS return he worked on October 5th, 6th and 7th without IllcIdent. However, he was dIscharged due to events on October 8th, 2005, hIS eIghth scheduled ShIft folloWIllg hIS reIllstatement. It suffices to note that the partIes are III agreement that as a result of the terms of reIllstatement the grIevor was under, Ifthe employer had just cause for any dIscIplIlle ansing out of the gnevor's conduct on October 8, 2005, hIS dIscharge must be upheld. The facts are not III dIspute to the folloWIllg extent. The gnevor was scheduled to commence hIS ShIft on Saturday October 8t\ 2005 at 9 00 a.m. and to get the Store ready for opemng at 10.00 a.m. He was scheduled to work alone till 1.00 p.m., at WhICh tIme two casual employees were to start theIr ShIft. BeIllg the Saturday of the ThanksgivIllg long weekend, that day has hIstorically been one of the three busiest days of the year for the LCBO The grievor dId 3 not report to work at 9 00 a.m. as scheduled. Around 10.30 a.m. the manager of a deh-store located III the same mall as the hquor store notIced that customers had gathered outside the hquor store, WhICh was still closed. He drove over to the home of one of the casual employees, Ms. DomImque ReId, and reported that the hquor store had not opened yet and that customers were gathered at the entrance. Ms. ReId, reahzIllg that It was the gnevor's responsibihty to open the store that day, called him at hIS home. Ms. ReId's call woke up the grIevor, who was still asleep Ms. ReId ImmedIately rushed over to the store, still in her PYJamas, and amved at the store at 10.47 a.m. Shortly after, at approxImately 10 50 a.m. the grIevor amved. Thus, there IS no dIspute that the gnevor was late for hIS ShIft by approxImately one hour and fifty mIllutes. The evidence IS also uncontradIcted that the gnevor dId not at any tIme notIfy management of hIS lateness The dIspute between the partIes, and the Issue for determIllatIOn by the Board, IS as to whether the grIevor's failure to report on tIme for his shift on October 8th, and hIS failure to notIfy management, gave the employer Just cause to Impose any dIsciphne on the grIevor The unIOn takes the posItIOn that III the partIcular cIrcumstances there was no Just cause for any dIscIpline because the gnevor's lateness on October 8th was "Illnocent" The unIOn rehed on the fact that the gnevor had suffered a work related IllJury back III December 1991 and was dIagnosed as suffenng from a degeneratIOn of the spIlle, a condItIOn called spondylosIS. In April 1993 he returned to work subject to permanent restrIctIOns approved by the Workers Safety Insurance Board, to avoid heavy liftIllg, pushing or pulling and to aVOId repeated or sustaIlled bendIllg or twIStIllg. The unIOn claImed that the gnevor's failure to report for hIS ShIft, and hIS failure to notIfy hIS absence, were directly related to hIS dIsabihty, l.e hIS back problem. Therefore, It was argued that hIS absence was innocent. AuthontIes were cIted to support the 4 legal proposItIOn that an employer has no Just cause to dIscipline an employee for Innocent absenteeIsm. The gnevor testIfied as to the reasons for hIS faIlure to report on tIme for hIS ShIft on October 8th and for hIS failure to notIfy management. On the former Issue, III chIef, he testIfied that on the 7th of October he scheduled himself for a ShIft from 11 45 a.m. to 8 15 p.m. DurIllg that ShIft he operated the cash. After work, he arrived at home around 9.00 p.m. When asked when he first felt paIll, the grievor testIfied that It was around 11 30 p.m. or mIdmght, when he had laId down III bed. He stated that the paIll he experienced at the tIme was "from standmg" dunng the ShIft. He stated that he could tolerate the paIll, but the tIllglIllg bothered hIm. Then the folloWIllg exchange occurred between union counsel and the gnevor Q. What dId you do? A. I took 2 Tylenols and sat up for a whIle. Then I went And lay down. But it was the same thIllg. So I took 2 more Q. when? A. 45 mIllutes later Q. What was the effect? A. N OthIllg. Q When dId you fall asleep? A. The last tIme I recall, the clock was at 4 or 4 15 a.m. The gnevor testIfied that normally he took Truly, Roboxacet or Roboxihn for paIll. However, that night all he had was Tyleno1. He testIfied that he dId not expect to need any medIcatIOn, that he dId not expect that "the paIll would creep up on me" The gnevor's next recall was heanng the telephone nng around 10.30 a.m. When he answered, Ms ReId asked hIm If he planned to go to work. He asked her what tIme It was and told her that he would go nght away He showered and left as fast as he could. 5 Umon counsel asked the grIevor why he had overslept. The grievor testIfied that he dId not hear the alarm. He saId "I was sedated. I was drugged out." Under cross-examIllatIOn, the grievor testIfied that on October 7th after hIS ShIft he went home dIrectly, had a snack, and went to bed by 11.30 p.m. Then the folloWIllg exchange took place Q DId anythIllg happen that mght? A. I couldn't get to sleep because my leg was bothenng me Q Not prior to that? A. Just a bIt. Q. What dId you do? A. I really couldn't do a lot. I wasn't prepared for a Recurrence I was III dIsarray III Cardmal. Q. What dId you do? A. I took a Tylenol. Q. Then? A. I waited for the paIll to go away tryIllg to fall asleep Q. DId you eventually fall asleep? A. Yes. Q. When your counsel asked you m chIef you said you took 2 Tylenols - was It one or two? A. One immedIately and probably one shortly after I then Kept on takIllg. Q In chIef you said somethIllg very dIfferent - You Just saId you took one and kept on takIllg? A. Probably I took through the whole evenIllg. Q. You were asked thIS question first m the NOID, then Pam McGregor asked you at the meetIllg, and then you were asked the same question III chIef - what IS your answer? A. Probably I took 5 over the course of the evemng. Q When dId you take the last Tylenol? A. About 3 30 Q. SO now you say between 12.30 and 3 30 you took 5? A. Yes. Q. But III chIef you clearly said you took 2 Tylenols, sat up for a whIle, and 45 mmutes later you took 2 more - which IS correct? A. Then ItS 4 Q. In chIef you said you were sedated and drugged out - do you recall that? A. Yes. 6 The gnevor had been Issued a NotIce of Intended DIscIphne (NOID) dated October 12, 2005 III relatIOn to hIS conduct on October gth, 2005 In hIS response to the NOID, the grievor explaIlled that he had expenenced a sharp tIllghng and numbness III hIS leg the mght before. He wrote "It has been a long time SIllce this has occurred and I was not 100% prepared for the return of my ongoIllg permanent disabihty that I have acqUIred after the hftIllg wIth my career wIth the LCBO" The grIevor then wrote "On the mght before the day III questIOn, I was pOppIllg Tylenols tryIllg to stop the sharp tIngle III my leg to fall asleep and to no aVaIl I was up most of the mght" Dunng hIS examIllatIon m chIef, the gnevor was asked whether he contacted the DIStrIct Manager, Ms. Karen RIchardson-Noms about his faIlure to report on tIme He rephed, "No DOmInIque told me that she had been Illformed already by someone at the IrOqUOIS Store After DOmInIque left I was pretty steady and also I was not 100% compatible wIth the cash regIster still" Under cross-examIllatIOn, the grIevor agreed that dunng the 3 week tramIllg he receIved upon hIS remstatement, he was remIllded of the reqUIrement to report to hIS supervIsor of any absence The gnevor acknowledged that he was aware of the reqUIrement. The gnevor further agreed that he was late for hIS shift by about one hour and 50 mInutes. He was asked whether he knew of the policy about what a store manager's obligatIOn was III that situatIOn. The grIevor rephed, "Yes. To notify the supervIsor" He was asked whether he notified hIS supervisor as per that pohcy The gnevor responded that he dId not. Then the following exchange occurred. 7 Q. Why not? A. She had been already notIfied. DomIllique SaId that a neIghbounng store phoned the DIstnct Manager that the store was not open. Q. DId she say that the Store spoke to the DIstnct Manager? A. That they left a voice-mail. Q So although you knew the procedure, you thought that was sufficient? A. I was at the store working. Q Answer my questIOn - even though you knew the procedure, You thought it was sufficIent that someone had left a voice-mail for Karen? A. Yes I dId. The eVIdence IlldIcates that at a meetIllg wIth management held on October 17, 2005, the grievor was asked whether he attempted to call anyone after he was woken up on October gth by Ms. ReId's call. He rephed that he dId not, that he got up, showered and went to work. When asked whether he called anyone once he got to work, he rephed that he did not, because DommIque had SaId that "Karen already knew" Ms ReId also testIfied on this Issue. She testified that the grIevor had amved shortly after she had opened the store She told the grievor "that some people had gone to the IroquOIs LIqUor Store and told them that our store had not opened, and that someone from the IrOqUOIS Store had called our DIStrICt Manager I asked hIm If he had called Karen. He saId "Oh. I am sure she WIll be calling me" Based on the eVIdence before me there are two distIllCt allegations of wrong-domg on the part of the grIevor FIrst, that he reported for hIS scheduled ShIft approxImately one hour and fifty mIllutes late, and second, that contrary to the procedure he was admIttedly aware of, the gnevor failed to notIfy hIS manager about hIS lateness Umon counsel argued that both InfractIons were non-culpable and Innocent, because they were "dIrectly related to the permanent 8 dIsabihty the grievor suffered from" Counsel thus submItted that this case come wIthIll the category of "Innocent absenteeIsm" It therefore follows, he submItted, that there was no Just cause for any dIscIphne ansIllg out of Innocent absenteeIsm. While the unIOn's argument IS creatIve, the eVIdence before me does not support that argument. The fundamental flaw III the union's argument IS that the eVIdence does not estabhsh any hnk between the gnevor's dIsabihty and his IllfractIOns. Employer counsel urged me to conclude that the gnevor's claIm that he suffered a recurrence of hIS dIsabIhty on the night III questIOn was a fabncatIOn, or at least an extreme exaggeration. Counsel pomted out that the inJury In questIOn took place some 14 years earher The employer at the tIme returned the gnevor to work wIthm hIS medIcal restnctIOns. For some 12 years SIllce then, no medIcal evidence of the status of hIS disabihty had been provIded to the employer Pnor to hIS first discharge, and SIllce hIS reinstatement, the gnevor had routIllely performed cashierIllg functIOns as a "D" store manager At no tIme dId he complaIn that those dutIes caused hIm any problems or that they were outsIde hIS restrIctIOns SIllce hIS reIllstatement at the CardIllal Store, he used hIS authonty as manager to schedule the casual employees to do the heavy work Involved on load days, whIle he restricted hImself to cashienng dutIes On October 7t\ he made no complaint of dIscomfort dunng the ShIft. Ms. ReId testIfied that she dId not notIce hIm to be III any dIscomfort or see hIm take any medIcatIOn. All he dId that day was cash, and he worked to the end of hIS ShIft. Counsel drew my attentIon to the eVIdence that followmg hIS first dIscharge, the gnevor had worked III the constructIOn mdustry, CUttIllg out walls. Smce his second dIscharge, he had been employed dOIllg paIlltIng. He had done thIS phYSIcal work WIthout any complamt and 9 wIthout suffering a recurrence of hIS disabIhty Counsel also pOIllted out that the grIevor had claImed that he had paIll and tIllghng III hIS leg to such extent that he dId not fall asleep till after 4.00 a.m. He also had claImed that the Tylenol he took was IlleffectIve Yet he dId not at any tIme even attempt to contact a doctor about the alleged recurrence of hIS dIsabihty The only actIOn he took was to buy some over the counter medIcation on the recommendatIOn of a pharmacIst, and even that he dId only on Saturday mght, after he had completed hIS ShIft and returned to Ottawa. Moreover, on October gth Saturday, once he reported to work, he camed out hIS functions wIth no problem or complaIllt, and completed hIS shift. Employer counsel submItted that all of thIS evidence suggests that the gnevor's story was a fabncatIOn. While I agree that the eVIdence as a whole casts doubt on the grIevor's claIm of a recurrence, for purposes of thIS deciSIOn It IS not necessary to make a fIlldIllg III thIS regard. AssumIng that he dId have a recurrence as he claIms, that by Itself does not assIst the unIOn's case The grIevor IS not claimIllg that he was unable to report to work on tIme or to notIfy management because he was III paIll. HIS explanation IS that hIS IllfractIOns were a result of hIm gettIllg sedated and drugged out as a result of the medIcatIOn he took, whIch caused hIm to sleep through the alarm. In other words, he claims that he dId not report for hIS ShIft on tIme and dId not report to management, not because of the recurrence of hIS dIsabihty, but because he had been sedated and dId not hear the alarm. Had he heard the alarm, there was nothing that would have prevented hIm from reportmg to work. In fact, once he was woken up by the telephone call, he dId report to work and even completed hIS ShIft. In hght of that lack of a connection between the alleged IllfractIOns and the gnevor's dIsabihty, I find that the pnncIples and authonties relating to the duty to accommodate and Innocent absenteeIsm relied upon by the umon are Irrelevant. The relevant Issue is whether the eVIdence estabhshes that the gnevor had 10 III fact been sedated by the Tylenol he took that night and if so, whether that renders hIS failure to report to work on tIme and his failure to notIfy management, non-culpable. On a reVIew of the eVIdence before me, I find the grievor's claIm that he was sedated as a result of the Tylenol he took that night to be not credible I have set out the eVIdence wIth regard to the InCOnsIstent statements the gnevor had made as to the quantIty of Tylenol he took that mght. The grievor made dIfferent assertIOns at different tImes, of the amount of Tylenol he took. His claIms ranged from takIllg 4 Tylenols between 12 30 and 3 30 a.m. to "kept on takIllg Tylenol all evemng" He did not explaIll hIS conflIctmg claims, but when confronted under cross-examIllatIon merely stated, "OK. Then It IS 4" HIS testImony III thIS regard was far from credible. He demonstrated that he was prepared to say anything that he felt was III hIS best Illterests at the tIme. Even If the Board Ignores the credibihty Issues, and accepts the final pOSItIOn the gnevor took durIllg cross-examIllatIOn, that he took 4 Tylenols between 1230 a.m. and 330 a.m., the eVIdence before me does not support a findIllg that as a result the gnevor would get "sedated and drugged out" as he claImed. The employer filed In eVIdence an excerpt from "The CompendIUm of PharmaceutIcals and SpecIaltIes - The CanadIan Drug Reference for Health ProfessIOnals" 2005, published by the Canadian PharmacIsts ASSOCIatIOn. In the sectIon under Tylenol, certaIll adverse effects are noted. However, a sedatIllg effect or even drowsIlless IS not hsted as a possible effect of Tylenol. I fIlld that the grievor's claIm to have been "sedated and drugged out" as a result of takIllg 4 Tylenols over a penod of 3 to 4 hours to be unbehevable In the face of the SCIentIfic eVIdence adduced by the employer, and III the absence of any eVIdence from the union that Tylenol, even if taken III large dozes, can possibly have such a sedatIllg effect, I do not accept the grievor's explanatIOn for hIS sleepIllg Ill. 11 The difficultIes WIth the unIOn's case do not end there Even If I had accepted that the gnevor had been sedated as a result of the Tylenol he took, and that It had caused hIm to sleep through the alarm, that stIll does not explaIll hIS failure to notIfy management. There is no questIOn that the gnevor woke up around 10.30 a.m. At that tIme he would defimtely have been aware that he would not meet hIS obhgatIOn to report for his ShIft at 9.00 a.m. He was also aware that the pohcy reqUIred hIm to notIfy management of hIS lateness at that tIme He dId not do that. Even If the Board accepts that the grIevor was more concerned about ruShIllg to open the store as soon as possible, there IS no explanatIon as to why he did not call hIS manager once he got the store opened. He dId not do that eIther From 10.50 a.m. he camed on as IfnothIllg had happened. The only explanatIOn the gnevor proVIded for hIS failure to notIfy had nothIllg to do WIth hIS alleged recurrence or hIS alleged sedatIOn. He dId not comply WIth hIS obhgatIOn to notIfy hIS manager because he had multiple hear-say IllformatlOn that the DistrIct Manager had already been Illformed by some unidentIfied person that the hquor store had not opened. ThIS was based on the fact that Ms. ReId had told hIm that some umdentIfied customer had told some unIdentIfied person at the IrOqUOIS LIquor Store that the CardIllal Store had "not opened", and that someone from that store, agaIll not Identified, had III turn left a voice-mail for the DIStrIct Manager The grIevor had no IllformatIOn as to the content of that vOIce-mail, other than that It saId that the CardIllal Store had not opened. Yet he decided that because someone else had left that vOIce-mail for the DIstnct Manager, that reheved him from his obligatIOn to notIfy PartIcularly consIdenng that the gnevor was the store manager WIth responsibihty for two casual employees, I find that the gnevor's casual attItude towards his obhgatIOns to be unacceptable. The eVIdence IS that Ms. ReId, even though a casual employee, understood that the grIevor was 12 reqUIred to notIfy management of hIS lateness. Indeed, as soon as the grIevor amved at the store, she remIllded hIm of that obhgation to call the DIStnCt Manager As part of the retrainIllg he receIved upon hIS reIllstatement the gnevor had been remIllded Just a few weeks earher that he was required to notIfy hIS Distnct Manager If he was not at the store when he was supposed to be on ShIft. Yet, when Ms. Reid asked hIm whether he had called the DIStrIct Manager hIS only response was to say "Oh! I am sure she will be calling me" In my decIsIOn dated August 11, 2005, I stated that I was reIllstatIllg the gnevor wIth some hesItatIon. I made It very clear that the gnevor was gettIllg one last chance to salvage hIS career wIth the LCBO and that mIsconduct gIVmg nse to Just cause for any dIscIphne, would result III hIS dIscharge wIthout recourse The gnevor testIfied under cross-examIllatlOn that he had read the deCISIOn and understood that. Yet, the conclUSIOn is Illescapable that after Just 8 ShIftS followmg hIS reIllstatement, he gave the employer cause for dIscIphne, by his failure to report for hIS ShIft on tIme, and by failing to notIfy management as reqUIred by the pohcy he was admIttedly aware of. HIS explanatIOns for the infractIOns are not behevable and are not reasonable His conduct was culpable and gave cause for dIscIpline ConsIdenng the terms of reIllstatement the gnevor was under at the tIme therefore, I have no other chOIce but to uphold the employer's deciSIOn to dIscharge hIm. 13 Accordingly, the Illstant gnevance IS hereby dIsmIssed. Dated thIS 14th day of August, 2006 at Toronto, Ontano