HomeMy WebLinkAbout2012-3022.Anagnostopoulos.17-03-21 Decision
Crown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB#2012-3022
UNION#2011-0288-0018
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Anagnostopoulos) Union
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario) Employer
BEFORE Michael V. Watters Vice-Chair
FOR THE UNION Natalie DeHaney-Stewart
Ontario Public Service Employees
Grievance Officer
FOR THE EMPLOYER Adrienne Couto
Liquor Control Board of Ontario
Counsel
HEARING September 15, October 15, December
16, 2015; June 22, October 20, October
26, 2016
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Decision
[1] At the outset of this proceeding, the parties filed the following Agreed Statement
Of Facts.
“The LCBO and the Union (hereinafter “the Parties”) agree to the following
facts for the purposes of the hearing of the above-noted matter and
without prejudice or precedent to other grievances and/or hearings. The
Parties agree that additional information may be presented at the hearing
by viva voce evidence.
I. The Grievor
1. The Grievor commenced employment with the LCBO in
or around September 7, 2004 as a casual customer
service representative (“CSR”).
2. At all material times the Grievor was a bargaining unit
employee represented by OPSEU and the terms and
conditions of her employment were governed by a
collective agreement between the LCBO and OPSEU. A
copy of the collective agreement for the term April 1,
2013 to March 31, 2017 is attached hereto as Exhibit 1
(the “Collective Agreement”).
II. The Termination and Grievance
3. By letter dated September 20, 2011, the LCBO terminated
the Grievor’s employment for the reasons set out in that
letter. A copy of the letter of termination is attached as
Exhibit 2.
4. The Grievor subsequently filed a grievance with respect to
the termination of her employment. A copy of the
grievance, dated September 22, 2011, is attached as
Exhibit 3.
III. Background
a. The Grievor’s Hiring
5. At all material times, the Grievor was employed by the
LCBO as a casual CSR. Upon her application for
employment, the Grievor completed and signed a Terms
and Conditions of Casual Employment form on August
30, 2004 (attached as Exhibit 4), which describes the
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general nature of her position. The general terms of her
employment upon hiring was also set out in a letter of
employment to the Grievor dated September 7, 2004
(attached as Exhibit 5).
6. The Grievor commenced work at the LCBO’s retail store
located at 236 Guelph Street, Unit B, Georgetown,
Ontario (“Store 156”). Effective January 4, 2010, until the
date of termination, the Grievor was assigned to the
LCBO’s retail store located at 256 Queen Street, Acton,
Ontario (“Store 297”) (letter of transfer attached as
Exhibit 6).
7. From the Grievor’s date of hire to the Grievor’s date of
termination, the following District Managers were
responsible for the LCBO’s retail stores located in the
Dufferin/Peel area, including Stores 156 and 297;
1) Jeff Misener from 2004-2007;
2) John Wilkinson from 2007-2010; and,
3) Josie Peirce from 2010-2014.
b. Disclosure of Spousal Abuse and Leave of Absence
8. In or around September, 2006, it was alleged that the
Grievor had consumed alcohol in the workplace. At a
pre-disciplinary meeting on September 28, 2006, the
Grievor disclosed that she had been in an abusive
relationship with her husband for approximately twenty
years. The Grievor further stated that she had turned to
alcohol for help when she had a “bad” day, but denied
having an alcohol abuse problem.
9. The incident of September, 2006 resulted in disciplinary
action being taken against the Grievor.
10. Subsequent to disciplinary action being taken, the Parties
ultimately agreed that the Grievor would be considered to
be on a leave of absence effective October 25, 2006,
during which time she would undergo an independent
medical assessment for the purposes of obtaining
treatment recommendations for alcohol and spousal
abuse and would comply with any such
recommendations.
11. On August 17, 2007, the Grievor attended an
assessment with Dr. Rhona Nemeth, Ph.D., C. Pscyh of
the University Health Network, Toronto, paid for by the
LCBO. On or about August 23, 2007, the LCBO received
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a Report from Dr. Nemeth. A copy of the Report is
attached as Exhibit 9 (the “Report”).
12. As per the Report, Dr. Nemeth concluded that the
Grievor had a history of spousal abuse and dependence
on alcohol, but based on her statements that she had not
consumed alcohol at work and had not had a drink in the
past year, that her alcohol abuse was in remission. Dr.
Nemeth advised that the Grievor was ready to leave her
husband and recommended that the Grievor attend
individual psychotherapy and group treatment for victims
of spousal abuse.
13. Further to Dr. Nemeth’s recommendations, the Grievor
subsequently attended, at the LCBO’s expense,
individual counselling sessions through Guelph
Wellington Care & Treatment Centre for Sexual Assault
and Domestic Violence, and returned to work effective
April 18, 2008.
14. The Parties agreed that, upon her return to work, the
Grievor would actively participate in any further post-
return to work treatment programs. Following completion
of the above-noted individual sessions, it was
recommended that the Grievor attend group treatment
sessions, but she did not do so.
c. Reports of Spousal Abuse Following Return to Work
15. Following her return to work in April, 2008, the Grievor
reported further incidents of spousal abuse.
16. In or around June, 2008, the Grievor advised her
manager that she would not be reporting for her shift as
her husband punched her in the nose. By letter dated
June 12, 2008 (attached as Exhibit 10), the LCBO
strongly encouraged her to contact her counsellor at her
treatment program and offered her flexibility in her
scheduling at work while she addressed the matter. The
Grievor did not request any accommodation at that time.
17. On or about Saturday, March 21, 2009, the Grievor called
the store and advised that she would not be able to
report to work indicating that her husband had hit her
again and she had noticeable bruising. She was urged to
get help and the employees phoned the police to advise
them of the situation. The Grievor was subsequently
absent from work on Saturday, March 21, 2009 and
Monday, March 23, 2009. A copy of the Incident Report
with respect to this matter is attached as Exhibit 11.
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18. On or about April 9, 2009, Mr. Wilkinson and Shelley
MacIntyre (sic.), Human Resource Advisor, met with the
Grievor to discuss the incident of March 21, 2009, as well
as the Grievor’s attendance since her return to work. At
such meeting, the Grievor advised that she was still
experiencing spousal abuse and that the individual
counselling sessions for spousal abuse that she had
been attending had finished in September/October 2008.
She acknowledged that she had been provided with
information about the availability of domestic violence
group support sessions, but stated that she did not
pursue this as she had no way to get to the sessions, she
was working at Walmart as well as the LCBO and her
mother had passed away. The Grievor was reminded
about the availability of the Employee Assistance
Program (“EAP”), provided with a pamphlet regarding the
EAP, and encouraged to contact her family physician for
assistance and referral to appropriate services. By letter
dated April 17, 2009 (attached as Exhibit 12), the LCBO
confirmed its discussions with the Grievor at the April 9,
2009 meeting and further offered flexibility with respect to
the Grievor’s schedule in order to address this matter.
The Grievor did not make such request or request any
other accommodation.
19. On December 29, 2010, the police were called to the
store as a result of the Grievor reporting an incident of
domestic violence. The LCBO was advised that criminal
charges and a restraining order were filed against the
Grievor’s husband and that he was no longer residing
with the Grievor. The Grievor did not work her scheduled
shift on December 29, 2010. This incident is described in
the letter to the Grievor dated February 25, 2011
(attached as Exhibit 19). As per such letter, the LCBO
advised the Grievor that it was prepared to transfer the
Grievor to another store and to develop a response plan
should the Grievor’s husband attend the store. The
Grievor did not request a transfer or request any other
accommodation with respect to her domestic situation.
d. Record of Counsel and Discipline
20. Following her return to work, the Grievor also received
the following counselling and discipline with respect to
failing to report to work as scheduled, failing to provide
notification of lateness or absense, failing to provide
satisfactory medical documentation supporting absences,
and reporting to work under the influence of alcohol or
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unit for duty. Such counselling and discipline was not
grieved.
21. On or about October 20, 2008, the Grievor’s Store
Manager verbally counselled the Grievor with respect to
her failure to report for work and failure to provide
notification of her absence from her shift of Friday,
October 17, 2008. The Manager’s notes with respect to
such counselling is attached as Exhibit 13.
22. By letter dated February 10, 2009 (attached as Exhibit
14), the Grievor received a letter of counsel with respect
to her failure to report for work and failure to provide
notification of her absence from work on Saturday,
January 31, 2009.
23. By letter dated July 15, 2009 (attached as Exhibit 15),
the Grievor was issued a letter of reprimand with
respect to her failure to report for work and failure to
provide notification of same for her scheduled shift of
Friday, June 26, 2009.
24. By letter dated July 29, 2009 (attached as Exhibit 16),
the Grievor was issued a letter of reprimand with
respect to her reporting for work late and failing to
provide notification of same for her scheduled shift of
Tuesday, July 21, 2009.
25. By letter dated January 21, 2010 (attached as Exhibit
17), the Grievor was issued a letter of reprimand for
reporting late for work, under the influence of alcohol and
unfit for duty on Friday, December 11, 2009.
26. By letter dated August 19, 2010 (attached as Exhibit 18),
the Grievor was issued a one (1) day suspension with
respect to failing to report for work on time and failing to
provide notification of same for her scheduled shift on
Thursday, July 29, 2010.
27. By letter dated February 25, 2011 (attached as Exhibit
19), the Grievor was issued a two (2) day suspension
for the reasons set out in that letter including being
absent from work without authorization and without
proper notification and attending at work under the
influence of alcohol and unfit for duty. In such letter, the
Grievor was also directed to provide medical
documentation dated the same date as the absence in
respect of any further absences.
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28. By letter dated March 16, 2011 (attached as Exhibit 20),
the Grievor was issued a three (3) day suspension for
her absence from work without prior notification on
Thursday, March 3, 2011.
29. By letter dated April 18, 2011 (attached as Exhibit 21),
the Grievor was issued a three (3) day suspension for
failing to provide notification of her absence and failing to
provide medical documentation satisfactory to the LCBO
in respect of her absence from work on Friday, April 1,
2011.
30. By letter dated May 17, 2011 (attached as Exhibit 22),
the Grievor was issued a three (3) day suspension for
failing to provide medical documentation satisfactory to
the LCBO in respect of her absences from work on
Saturday, April 23 and Tuesday, April 26, 2011.
31. By letter dated June 13, 2011 (attached as Exhibit 23),
the Grievor was issued a five (5) day suspension for
failing to provide medical documentation satisfactory to
the LCBO in respect of her absence on Thursday, May
12, 2011 and failing to provide notification in respect of
her absences on May 17, 19 and 20, 2011.
e. LCBO’S Further Attempts to Accommodate the
Grievor
32. As detailed in the letters of discipline dated January 21,
2010, February 25, 2011 and June 13, 2011 (attached as
Exhibits 17, 19 and 23, respectively), when the Grievor
commenced reporting to work under the influence of
alcohol and unfit for duty, the LCBO met with the Grievor
prior to such discipline being issued and asked whether
the Grievor had an alcohol problem. In such meetings,
and as confirmed in the afore-noted letters, the LCBO
advised that should the Grievor acknowledge that she
has an alcohol problem or addiction, it would
accommodate same and assist in facilitating treatment.
The Grievor was also advised that the LCBO was
prepared to assist her in taking steps to deal with her
domestic situation and she was reminded of the
availability of the EAP. The Grievor, however, denied
that she had an alcohol problem or addiction and did not
request any accommodation either in respect of an
alcohol problem or her domestic situation.
33. Subsequent to the letter of discipline dated June 13,
2011, the LCBO met with the Grievor and her union
representative on June 17, 2011 to discuss her absences
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from work from June 13 to 16, 2011, at which time the
Grievor advised that she was absent due to being raped
in an alley by a stranger. The LCBO, in good faith and
on a without prejudice basis, advised that although it did
not believe her explanation, it would not issue discipline.
Instead, the LCBO implored her to get professional help
in dealing with her issues and warned her that her
employment was in serious jeopardy if her misconduct
continued. Details of the absences from June 13 to 16,
2011, as well as the subsequent meeting with the
Grievor, are set out in a letter to the Grievor dated June
21, 2011 (attached as Exhibit 24).
IV. Events Leading to the Grievor’s Termination
34. On July 14, 2011, the Grievor was scheduled to
commence work at 10:00 a.m. The Grievor did not report
to work at the start of her shift. The Store Manager’s
notes with respect to same is attached as Exhibit 25.
35. At approximately 4:40 p.m. on July 14, 2011, the Grievor
attended at the store dressed in her LCBO work attire
and sat down in the office chair while the Store Manager
was in the office talking to another store. She did not say
anything but soon thereafter left stating she could not
wait any longer. The Store Manager’s notes with respect
to same are attached as Exhibit 26.
36. By letter dated July 14, 2011 (attached as Exhibit 27),
the Grievor was advised that disciplinary action may be
taken with respect to her absence from work on July 14
and her failure to provide notification in respect of same.
The Grievor was asked to provide a written response
within three (3) calendar days from receipt of the letter,
explaining her conduct.
37. The Grievor provided a medical note dated July 14, 2011
(attached as Exhibit 28) advising that she was unable to
attend work on July 14, 2011 for medical reasons.
38. The Grievor was scheduled for work on July 15, 2011.
Shortly after she reported for work, the Grievor’s
manager assessed her as being under the influence of
alcohol and/or unfit for duty and sent her home as a
result of same. Another CSR, Jessica Fellin, witnessed
this event. The Store Manager’s notes and Jessica
Fellin’s notes with respect to same are attached as
Exhibits 29 and 30, respectively. The Grievor disagrees
that she reported to work under the influence of alcohol
and unfit for duty on July 15, 2011.
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39. By letter dated July 15, 2011 (attached as Exhibit 31),
the Grievor was advised that disciplinary action may be
taken with respect to her being under the influence of
alcohol and unfit for duty on Friday, July 15, 2011. The
Grievor was asked to provide a written response within
three (3) calendar days from receipt of the letter,
explaining her conduct.
40. On or about July 25, 2011, Ms. Peirce received the
Grievor’s response to its letters dated July 14 and July
15, 2011, advising that she would like to “sit down” to
discuss same. The Grievor’s written response is
attached as Exhibit 32.
41. By letter dated July 25, 2011 (attached as Exhibit 33),
Ms. Peirce confirmed receipt of the Grievor’s response
and advised that a meeting was scheduled for August 4,
2011 to discuss the contents of the July 14 and 15, 2011
letters.
42. The Grievor reported for her scheduled shifts, without
incident, from July 16 to July 28, 2011.
43. On July 29, 2011 the Grievor was sent home for reporting
to work under the influence of alcohol and/or unfit for duty
by the Acting Store Manager, Bryan Dunn. Mr. Dunn’s
notes in respect to same are attached as Exhibit 34.
Two CSR’s, Jessica Fellin and Louise Millar, witnessed
the Grievor and also assessed her to be intoxicated. Ms.
Millar’s and Ms. Fellin’s statements are attached as
Exhibits 35 and 36, respectively. The Grievor agrees
that she was under the influence and unfit for duty on
July 29, 2011.
44. The Grievor reported for her scheduled shifts and worked
without incident on July 30 and July 31, 2011.
45. On August 2, 2011, the Grievor was sent home for
reporting to work under the influence of alcohol and/or
unfit for duty by the Store manager. The Store Manager’s
notes in respect to same are attached as Exhibit 37.
The Grievor agrees that she was under the influence and
unfit for duty on August 2, 2011.
46. By letter dated August 2, 2011 (attached as Exhibit 38),
the LCBO advised the Grievor that disciplinary action
may be taken in respect of her reporting for work under
the influence of alcohol and/or unfit for duty on July 29,
2011 and August 2, 2011. The Grievor was advised that
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such conduct would be discussed at the August 4
meeting.
47. On August 3, 2011, the Grievor reported to Heather
Chalmers, Ms. Peirce’s District Assistant, and the Store
Manager that she would be absent from her scheduled
shift due to illness. Ms. Chalmer’s and the Store
Manager’s notes in respect to same are attached as
Exhibits 39 and 40, respectively. The Grievor did not
provide any medical documentation in support of her
absence.
48. On August 4, 2011, Ms. Peirce and Ms. McIntyre met
with the Grievor and her union representative to discuss
her conduct since July 14, as detailed above. Ms.
Peirce’s and Ms. McIntyre’s notes from the meeting are
attached as Exhibits 41 and 42 and summarized in a
letter to the Grievor dated August 8, 2011, attached as
Exhibit 43. At the meeting, when asked if she had an
alcohol abuse problem, the Grievor stated “I think I
started to have one, yes”. The Grievor further
acknowledged that the July 15, 29 and August 2
incidents were probably the result of an alcohol abuse
problem, noting that she had been up drinking all night
and stated that she was prepared to participate in
treatment for alcohol abuse.
49. By letter dated August 8, 2011 (attached as Exhibit 43),
the LCBO advised that it was prepared to accommodate
the Grievor and facilitate her attendance at a suitable
treatment program and was asked to provide the
following by August 31, 2011:
1) Confirmation of arrangements for her enrolment in
a suitable alcohol addiction treatment program;
and
2) The duration, dates, and times of her participation
in that treatment program.
The Grievor was further advised that pending receipt of
the requested information, the LCBO would defer its
decision with respect to the Grievor’s conduct from July
14 to August 3, 2011.
50. On August 6, 2011, the Grievor arrived approximately 2
½ hours late for her scheduled shift, without prior
notification, and on August 7, 2011, she arrived 15
minutes late for her scheduled shift. The Store Manager’s
notes with respect to same are attached as Exhibit 44.
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51. The Grievor reported for her scheduled shift on August 8,
2011 and worked without incident.
52. On August 9, 2011, the Grievor was sent home for being
under the influence of alcohol and/or unfit for duty. The
Store Manager’s notes with respect to same are attached
as Exhibit 45. The Grievor agrees that she was under
the influence of alcohol and unfit for duty on August 9,
2011.
53. On August 10, 2011, the Grievor did not report for work
at her scheduled start time of 10:00 a.m. When the
Grievor attended at the store at approximately 11:05
a.m., she had a black eye and immediately asked if she
could go home. The Store Manager’s notes with respect
to this incident are attached as Exhibit 46.
54. On August 11, 2011, the Grievor called in sick for her
scheduled shift, advising that she was having trouble
seeing out her eye and that she did not look presentable
to work. The Store Manager’s notes with respect to this
incident are attached as Exhibit 47.
55. On August 12, 2011, the Grievor called in sick for her
scheduled shift, advising that her eye was getting better
but she was still having trouble seeing clearly. She
advised, however, that she would report for her shift the
next day (August 13). The Store Manager’s notes with
respect to this incident are attached as Exhibit 48.
56. By letter dated August 12, 2011 (attached as Exhibit 49),
the Grievor was advised that disciplinary action may be
taken in respect of her conduct from August 6 to August
12, but it would defer its decision regarding disciplinary
action pending receipt of the information requested in its
letter dated August 8, 2011. The Grievor was further
advised that unless she took steps to address her alcohol
addiction, her employment would likely be terminated.
57. On August 13, 2011, the Grievor advised that she was
still “black and blue” and “not presentable” so she would
try to come in on Tuesday, August 16, 2011 and she
would not be attending her shift of Sunday, August 14.
The Acting Store Manager’s note with respect to same is
attached as Exhibit 50.
58. On August 16, 2011, the Grievor advised that she was
too weak to work and was not eating so she would not be
attending her scheduled shifts on August 16, 2011 and
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August 17, 2011. The Acting Store Manager’s note with
respect to same is attached as Exhibit 51.
59. On August 17, 2011, the Grievor advised that she did not
look presentable to attend work for August 18 and 19,
2011. She was then absent for her scheduled shifts on
these dates.
60. Shortly after her scheduled start time, the Grievor
attended Store 297 on Saturday, August 20 and
presented a medical note to the Store Manager dated
August 20, 2011 advising that the Grievor was unable to
work August 8 to August 20, 2011 inclusive. The
Grievor’s face and eyes were covered in bruises. The
Store Manager’s notes and the medical note dated
August 20, 2011 are attached as Exhibits 52 and 53,
respectively.
61. The Grievor subsequently attended at work on Monday,
August 22, 2011, and continued to report for her
scheduled shifts without incident until Sunday,
September 4, 2011.
62. By letter dated August 26, 2011 (attached as Exhibit 54),
the Grievor was advised that the LCBO had concerns
with respect to the medical note received, and her
conduct from, August 13 to August 20, 2011. However,
again, the LCBO advised that it would defer disciplinary
action pending receipt of the information requested in its
August 8, 2011 (word omitted). The LCBO reminded the
Grievor that it expected such information by August 31,
2011, failing which her employment would likely be
terminated.
63. The LCBO did not, however, receive the requested
information on or before August 31, 2011. By letter dated
September 1, 2011 (attached as Exhibit 55), the LCBO
confirmed that it had not received the requested
documentation regarding the treatment of the Grievor’s
alcohol addiction and further advised that a meeting had
been scheduled for September 8, 2011 to discuss the
Grievor’s conduct from July 14 to August 20, 2011 and
her failure to provide the requested documentation.
64. The store was closed for Labour Day on Monday,
September 5, 2011. The Grievor did not report for her
scheduled shift on September 6, 2011, as per the Store
Manager’s notes attached as Exhibit 56. The Grievor
reported for work on September 7, 2011, dressed in her
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LCBO attire, but she was sent home as she was not
scheduled to work that day.
65. The Grievor did not attend the meeting of September 8,
2011. Instead, the Grievor’s union representative
attended the meeting and advised that the Grievor was
sick and would not be attending. The Grievor did not
attend her scheduled shift of September 8, 2011 and did
not provide the store notification of her absence. The
Store Manager’s notes with respect to her absence on
September 8, 2011 are attached as Exhibit 57.
66. On September 9, 2011, the Grievor reported for work and
submitted a medical note dated September 9, 2011
indicating that she was unable to work for medical
reasons from September 6, 2011 to September 8, 2011
inclusive (attached as Exhibit 58).
67. By letter dated September 9, 2011 (attached as Exhibit
59), the Grievor was relieved from duty with pay.
68. On September 16, 2011 at approximately 9:00 a.m. the
Grievor called the District Office; however, the District
Assistant, Heather Chalmers, was on the phone and was
unable to take her call. The Grievor called again at
approximately 10:10 a.m. requesting to speak with Ms.
Peirce. Ms. Chalmers advised her that she would let Ms.
Peirce know that the Grievor would like to speak to her.
The Grievor attempted to provide further information to
Ms. Chalmers, but Ms. Chalmers advised that she could
not discuss the matter with her. Ms. Chalmers’ notes in
respect of this conversation is attached hereto as Exhibit
60.
69. On September 16, 2011 at approximately 4:53 p.m., Mr.
Peirce contacted the Grievor’s Union representative,
Frank Gullace, by email, requesting that he contact the
Grievor to find out what she wanted to tell Ms. Peirce.
Mr. Gullace responded via email stating that he had been
trying to contact the Grievor for the last two days and she
was not answering the calls. He further advised that he
would try once again and get back to Ms. Peirce. The
emails of Ms. Peirce and Mr. Gullace are attached as
Exhibit 61.
70. Mr. Gullace did not get back to Ms. Peirce and, by letter
dated September 20, 2011 (attached as Exhibit 2), the
Grievor’s employment was terminated.
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V. LCBO Policies
71. The following policies with respect to Social
Responsibility are attached as Exhibits 62 and 63,
respectively:
1) Social Responsibility at Work (AM-0403-05)
2) Challenge & Refusal: It’s Not Personal. It’s
the Law (RO-0603-02)
72. The Grievor received training, and refresher training, in respect
of the LCBO’s Challenge & Refusal Program and Policy, as per
the training records attached Exhibit 64.”
[2] Ms. Peirce presented evidence on behalf of the Employer in this proceeding.
The Grievor, Ms. Anagnostopoulos, was the sole witness for the Union. Their evidence,
for the most part, touched on facts and exhibits referenced in the Agreed Statement Of
Facts.
[3] The letter of termination dated September 20, 2011 is lengthy. After reviewing
the grievor’s file from October 17, 2008 to September 9, 2011, and documenting the
efforts the Employer had made to assist the grievor with respect to spousal and alcohol
abuse issues, the letter, signed by Ms. Peirce, states:
“Ms. Anagnostopoulos, the LCBO cannot continue to tolerate your
conduct as outlined herein and the resulting negative impact it has
on store operations and other staff members. For a number of
years, the LCBO has offered to assist you as outlined above. We
have arranged and paid for a psychological evaluation and
individual psychotherapy sessions. We have repeatedly advised
you that we would accommodate you and assist in facilitating your
attendance at a suitable alcohol treatment program. We have also
held discipline in abeyance, in the hopes that you would provide
information to confirm your participation in a suitable alcohol abuse
treatment program. You have not done so, although you have
been given ample opportunity to do so. Ultimately, you have not
taken steps to facilitate your own accommodation.
Given the above, I have determined that disciplinary action is
warranted for your conduct from July 14, 2011 to date and, after
considering all of the information available to me, including your
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lengthy disciplinary record, your failure to provide the LCBO with
documentation confirming your enrolment in a suitable alcohol
treatment program, and your failure to attend the scheduled
meeting on September 8, 2011, you are advised that your
employment with the LCBO is terminated effective immediately for
just cause……………………………”
[4] A grievance was subsequently filed on the grievor’s behalf on September 22,
2011. The Grievance Form, as written, claims that the grievor was unjustly dismissed
from her casual CSR position.
[5] The Position Description for CSR sets out the purpose of the position in the
following terms:
“The purpose of the Customer Service Representative
position is to present the LCBO brand to our customers by
executing all corporate programs to established standards
at the store level. This encompasses all operational issues
from providing engaging customer service to social
responsibility, to receiving and stocking product, to
performing cash duties and maintaining the general
appearance and cleanliness of the store.”
The document further lists a variety of duties and responsibilities of a CSR working in a
retail outlet under the headings of Engaging Customer Service, Social
Responsibility/Environmental Stewardship, Store Operations and Corporate Knowledge.
This Vice-Chair was informed that a casual CSR, such as the grievor, performs the
same job duties as a full-time CSR.
[6] Store 297 is located in Acton, Ontario, a small community having a population of
less than ten thousand (10,000) residents. It is a C class store with annual sales of
approximately five million dollars ($5,000,000.00). The store is staffed by seven (7)
employees, this number being comprised of a bargaining unit Manager, one (1) full-time
employee and five (5) casual staff. As mentioned in the Agreed Statement Of Facts, the
- 16 -
grievor was assigned to Store 297 from January, 2010 to the time of her termination in
September, 2011. Prior to this period, she worked in Store 156 in Georgetown, Ontario.
[7] Ms. Peirce testified that a call-in procedure is in place in the event an employee
is going to be absent or late. More specifically, the employee is required to notify the
Store Manager or Shift Leader, if the Manager is not on site, prior to the start of their
scheduled shift if they will be absent from, or late for, the shift. Ms. Peirce stressed that
compliance with this procedure is extremely important given that unanticipated
instances of absence or lateness can adversely affect a store’s operations. In this
regard, she referenced the following:
i) It is very difficult to secure replacement staff if sufficient
notice is not provided. This is particularly so with
respect to Store 297, as there are not a lot of employees
working at that location. Ms. Peirce advised that
replacement opportunities are first offered to staff
working at the store on the basis of seniority. If an
employee cannot be found to cover for the absence,
then employees working out of the Georgetown store
are contacted. She noted, in effect, that this can be a
time-consuming process and that it may result in
increased costs in terms of overtime. In Ms. Peirce’s
words, “last minutes changes are always difficult to
make”;
ii) Store 297 may typically only have two (2) staff
scheduled to work a given shift. If one (1) person fails
to show up for their shift, the remaining employee, as a
consequence, may be left alone to perform all of the
required duties. Ms. Peirce testified that it is very
difficult for a single employee to handle all of the
customer service needs on the floor and at the register,
as well as the other tasks required elsewhere. By way
of example, she noted that it would be extremely
challenging for one (1) staff member to receive a load of
inventory and, at the same time, also be responsible for
what is going on elsewhere within the store. Ms. Peirce
observed that the LCBO could be billed by the delivery
company for extra hours, if a load has to be turned away
- 17 -
because of the lack of personnel on site. She further
suggested that a shortage of staff on a given shift could
increase the possibility of theft and security issues
arising. In her judgment, such a shortage could
negatively impact the quality of service expected by
customers at the LCBO; and
iii) Absences and instances of lateness can inconvenience
other employees working in the store. Such employees
may be required to come in early or stay late, work on a
scheduled day off, or work alone or short-handed.
Additionally, delays could occur with respect to their
lunches, breaks and rest periods. Ms. Peirce testified
that two (2) employees at Store 297 complained to her
orally about the grievor’s record of attendance. She
recalled that their concern was whether the grievor
would attend for her shift and, if she did, whether she
would be fit to work.
Ms. Peirce could not remember receiving any actual complaints from customers relating
to the times the grievor was absent or late at Store 297. Similarly, she could not recall if
an increased level of theft was reported on those occasions. It was the thrust of her
evidence that the grievor’s pattern of attendance created the potential for these effects.
[8] Ms. Peirce advised that the grievor’s attendance record was poor in the three (3)
year period preceding her termination. More specifically, the grievor used twenty-nine
(29) sick days in the period from April 18, 2008 to April 18, 2009, twenty (20) of which
were due to an operation; twelve (12) days were missed in the same period for
“personal family matters”; the grievor used thirty-two (32) sick days in the period
September 1, 2009 to September 1, 2010; and she was absent from work on thirty-three
(33) occasions between January 1 and May 31, 2011. The grievor’s Performance
Appraisals for the first two (2) periods mentioned above describe her attendance as
“unacceptable”. Ms. Peirce viewed the grievor’s record as one of “excessive
- 18 -
absenteeism”. She noted that the annual average for full-time CSRs in the District over
the same period was eight (8) days of absenteeism due to sickness.
[9] Ms. Peirce referenced the instances where the grievor was sent home for
attending work under the influence of alcohol and/or unfit for duty. On those occasions,
there were reports that the grievor smelled of alcohol; had trouble standing; was
staggering; had glassy eyes; and had difficulty counting cash or signing into her
register. Ms. Peirce maintained that arriving for work in such a condition could create a
safety risk for both the grievor and other employees. She noted that the grievor did
drop a case of product on August 9, 2011 when unloading inventory delivered to Store
297. In that instance, the product had to be written off. In Ms. Peirce’s judgment, an
employee sent home in these circumstances affects customer service and the store’s
overall operations to the same extent as if they simply did not report for their shift.
[10] In Ms. Peirce’s view, given the conditions exhibited by the grievor, a customer
would likely be able to tell that she was under the influence of alcohol while at work.
From her perspective, such an observation by a member of the public would seriously
undermine the professional image that front-line employees of the LCBO are expected
to project and could, as a result, detrimentally affect the reputation of the Acton Store.
Ms. Peirce further stated that attending at work under the influence and/or unfit for duty
is contrary to the Employer’s policy with respect to Social Responsibility At Work. This
policy provides as follows:
“SUMMARY As a leader in promoting social
responsibility, the LCBO expects all
employees to behave in a responsible
and professional manner while attending
work and work-related social functions.
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This policy sets out the LCBO’s
expectations of its employees while on
duty and notes that breaches of this
policy will result in disciplinary action, up
to and including termination (see also
AM-0403-04-Social Responsibility).
Intoxication Staff are not permitted to:
• consume alcoholic products
while on duty, except at official
events or if functions of position so
require it (click on or refer to AM-
0403-04-Social Responsibility)
• have/consume illicit drugs on
LCBO property.
Disciplinary Action Staff members reporting for work at the
beginning of the work day/shift or those
returning to work from a break/lunch
under the influence of alcohol/drugs to
the extent that it interferes with their
performance or is detrimental to the
LCBO image, will be subject to
disciplinary action up to and including
termination.”
[11] Ms. Peirce also observed that, on those occasions where the grievor appeared
for work under the influence of alcohol, she might be unable to engage effectively in the
application of the Employer’s Challenge And Refusal Policy. Pursuant to this policy, a
CSR is required to challenge and refuse service to the following categories of
customers:
persons who appear to be under the age of 25, and who do not
produce acceptable photo identification;
persons who appear to be intoxicated; and
persons who appear to be making a purchase for an individual
whose age or intoxication would prevent them from purchasing
alcohol.
- 20 -
LCBO staff receive regular training with respect to both the application and importance
of the policy. Ms. Peirce advised that the policy is a central component of the LCBO’s
mandate to promote social responsibility.
[12] It is apparent from all of the evidence that the LCBO, for some time, suspected
that the grievor had an alcohol abuse problem. Its suspicions and concerns were
documented in a number of letters forwarded to the grievor over the course of her
employment. Ms. Peirce’s letter to the grievor dated June 13, 2011 is reflective of the
substance and tone of these communications. The relevant passages from the letter
read:
“…………………………………………………………………………….
The LCBO continues to suspect that you have an alcohol abuse
problem, despite your continuing denials of an alcohol abuse
problem. Following an alcohol-related incident in the workplace in
October 2006, the, LCBO arranged for you to attend a
psychological evaluation at its expense in August 2007 for the
purpose of obtaining treatment recommendations in relation to
alcohol and spousal abuse. At that evaluation, you admitted to a
history of alcohol abuse but, despite the October 2006 workplace
incident, you denied ever drinking alcohol at work and stated that
you had not consumed any alcohol in the past year and had no
problem whatsoever with alcohol. As a result of your denials, the
evaluation report did not include alcohol abuse treatment
recommendations and only addressed recommended treatment for
spousal abuse. Further to this recommendation and at the LCBO’s
expense, you attended individual psychotherapy sessions at the
Guelph Wellington Care and Treatment Centre for Sexual Assault
and Domestic Violence. Following the completion of these
individual sessions, you were recommended to attend group
treatment sessions, but did not do so. Since then, the LCBO has
continued to address and encourage you to seek professional
assistance following absences from work due to reported incidents
of domestic violence in May 2008, March 2009 and December
2010. The LCBO has also addressed further alcohol-related
incidents in the workplace. Specifically, in December 2009 you
reported to work late and under the influence of alcohol. At that
time, you again denied having an alcohol abuse problem and were
issued a written reprimand dated January 21, 2010. You had a
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suspected alcohol-related absence without notification on January
15, 2011 and a further incident on February 5, 2011 in which you
reported for work under the influence of alcohol. Two attempts
were made to meet with you at that time, but you failed to attend
the scheduled meetings and were subsequently issued a two-day
suspension dated February 25, 2011.
………………………………………………………………………………
Ms. Anagnostopoulos, despite your denials, the LCBO strongly
suspects that you currently have an alcohol problem. The LCBO
has advised you that it is prepared to accommodate you and assist
in facilitating treatment, but will only do so if you satisfy your duty to
participate in your accommodation by admitting to and taking steps
to address your alcohol problem and providing the LCBO with
documentation in support of this. Given the nature of your
responses at the June 1, 2011 meeting, and in the absence of
documentation supporting that you have an alcohol addiction, the
LCBO can only accept that you do not have an addiction requiring
accommodation.
………………………………………………………………………………
Ms. Anagnostopoulos, the LCBO will not continue to tolerate your
conduct, including reporting for or being under the influence of
alcohol at work, suspected alcohol-related absences or absences
without authorization and/or notification, and failing to support
illness-related absences with medical documentation obtained on
the date of your absence. You are warned that any further conduct
of this nature will result in further disciplinary action up to and
including the termination of your employment.
You are again reminded that the LCBO offers an Employee
Assistance Program, coordinated through Human Solutions, that is
available at no cost to you 24 hours a day, 7 days a week by calling
1-800-663-1142 toll free.
……………………………………………………………………………”
[13] Ms. Peirce emphasized that the grievor was always adamant, when confronted
with the Employer’s suspicions, that she did not have an alcohol abuse problem. She
noted that the grievor’s first acknowledgement that she might have “started” to have one
was at the meeting of August 4, 2011. This statement led to the LCBO’s offer to
accommodate the grievor and to facilitate her attendance at a suitable alcohol addiction
treatment program. The Employer’s willingness to engage in this process is
- 22 -
documented in Ms. Peirce’s letter to the grievor dated August 8, 2011. The material
excerpt reads:
“------------------------------------------------------------------------------------
The LCBO is pleased that you have now acknowledged, albeit
reluctantly, that you have an alcohol abuse problem and that you
are prepared to participate in treatment. Given this, the LCBO is
prepared to accommodate you and assist in facilitating your
attendance at a suitable treatment program. You are directed to
provide the following information directly to my attention as soon as
possible but no later than August 31, 2011:
1. Confirmation of the arrangements for your enrolment in a
suitable alcohol addiction treatment program;
2. The duration, dates, and times of your participation in
that treatment program.
Upon receipt of the above information the LCBO will determine
what, if any, accommodation is required to facilitate your
attendance at the treatment program. In addition, upon your
subsequent completion of the treatment program you are directed
to provide the LCBO with documentation from your treatment
provider confirming your successful completion of the treatment
program.
Pending receipt of the information requested above, the LCBO will
defer its decision with respect to disciplinary action for your failure
to report for work and failure to give prior notification to the store of
your absence on July 14, 2011, and for being under the influence of
alcohol and unfit for duty on July 15, 2011, July 29, 2011 and
August 2, 2011. The LCBO will also defer taking action with
respect to your absence from work on August 3, 2011, for which
you have failed to provide the required supporting medical
documentation.
……………………………………………………………………………”
[14] As noted between paragraphs #50 and #66 of the Agreed Statement Of Facts,
the grievor subsequent to the August 4th meeting continued to be late and/or absent
without prior notice; failed to supply medical documentation in conformity with the
Employer’s requirements; and attended at work under the influence of alcohol and/or
unfit for duty. She also failed to provide the information requested by Ms. Peirce in her
- 23 -
letter of August 8, 2011 pertaining to the treatment program, and did not attend the
meeting scheduled for September 8, 2011 to discuss these issues. As a consequence,
Ms. Peirce, after consultation with the Regional Director and Human Resources
personnel, decided to terminate the grievor’s employment. She testified that in arriving
at the decision to dismiss, she considered the grievor’s disciplinary record over the prior
three (3) years and the fact that the latter’s conduct did not improve notwithstanding
numerous meetings and letters related to same. Ms. Peirce believed that the grievor
had been accorded an ample opportunity to change her behavior. Ultimately, she
concluded that the employment relationship was no longer viable.
[15] The grievor was fifty-six (56) years old as of the date she gave evidence in this
proceeding. She completed a one (1) year Business Administration course at a
community college while in her late teens. Thereafter, she worked in a clothing store
and in her family’s restaurant business. For part of the period during which she was
employed by the LCBO, the grievor also worked overnight at Walmart stocking shelves.
[16] During the period material to this case, the grievor lived in a second floor
apartment on Mill Street East in Acton. Her apartment was situated within a commercial
area. It was located approximately one (1) kilometre from Store 297. The grievor
estimated that it generally took her about twenty (20) minutes to walk to work. Her
doctor’s office on Eastern Avenue was located between her apartment and Store 297.
The grievor advised that it was less than a ten (10) minute walk from that office to her
place of employment on Queen Street.
[17] During the course of her evidence, the grievor agreed that she had above
average absenteeism from 2008 to the date of her termination. The grievor further
- 24 -
acknowledged the following: she was expected to attend for all scheduled shifts, and to
show up on time, unless there was a real emergency which prevented her from doing
so; if she was unable to attend for a scheduled shift, or was going to be late, there was
a requirement that she contact the store and advise the Manager or Shift Leader of that
fact; and that she could be disciplined for failure to provide this prior notice.
[18] The grievor asserted that much of her conduct between 2008 and August, 2011
was caused by the abusive relationship she experienced with her husband. As
mentioned in the Agreed Statement Of Facts, there had been a long history of spousal
abuse. On the grievor’s account, this came to a head in December, 2010 when she was
assaulted by her husband and suffered a resulting concussion. The grievor advised
that she then separated from her husband and obtained a restraining order against him.
It was her evidence that, while their relationship ended at that juncture, she continued to
experience stress as a consequence of the husband’s failure to pay certain of her bills.
In substance, the grievor claimed that her mind was not functioning properly in this
period. In her words, she was not thinking right and was unable to cope with what was
going on in her life. She described herself as then being “a different person”.
[19] The grievor maintained that her failure to notify the Employer she would be
absent or late was, in part, related to her inability to access a telephone. Her evidence
on this point may be summarized as follows: prior to December, 2010, there were times
when her husband would not allow her to use the telephone; there were problems with
her telephone line in the period between mid-July and early August, 2011; there were
no other people living in her building and her friend in the building next door was not
- 25 -
available during the day; she did not think it appropriate to go into a local business and
ask to use their telephone; and there was no pay phone close by.
[20] The grievor in her communications with the Employer in September, 2006 denied
that she had an alcohol abuse problem. It was her evidence that she did not then
believe she had such a problem. Rather, she simply used alcohol to calm her nerves
and to get her through the day. The grievor agreed that, in retrospect, she did in fact
have an alcohol abuse issue at the time. As noted at paragraph #12 of the Agreed
Statement Of Facts, the grievor told Dr. Nemeth in August, 2007 that she had not
consumed alcohol in the past year and that she had no problem whatsoever avoiding
alcohol. On the basis of this information, Dr. Nemeth recommended that the grievor
attend individual psychotherapy and group treatment for purposes of addressing the
reported spousal abuse. The grievor recalled that she attended about ten (10) of the
individual counselling sessions and that she found them to be quite helpful. She elected
to not pursue the group treatment. The grievor explained that participating in such a
program was not feasible for the following reasons: she worked both days and nights;
she could not afford to take time off from work; and it would be difficult to arrange for
transportation to the treatment site given the existing bus schedule.
[21] The grievor agreed that she was under the influence of alcohol and unfit for duty
on July 29, August 2 and August 9, 2011. In cross-examination, she further agreed that
it is unprofessional, and contrary to the Social Responsibility At Work policy, for a CSR
to attend work while under the influence. The grievor maintained that she now knows it
is wrong to report to work in such a state, and that any employee doing so may be
subject to discipline. She added that “back then” she did not know what her thinking
- 26 -
was. Similarly, the grievor testified that, at the time, she did not feel her condition would
undermine her ability to apply the Challenge and Refusal policy. Looking back, she
agreed that it would likely have impaired such ability. The grievor was asked by counsel
for the Employer why she did not call in sick, instead of reporting to work, on those
occasions when she was under the influence. I noted her response as: “Yes, if near a
phone, my mind was not right back then, I was a different person.”
[22] The grievor denied that she reported to work under the influence of alcohol and
unfit for duty on July 15, 2011. I note the following with respect to this incident:
i) The Store Manager, in his report, noted that he smelled alcohol
on the grievor when she arrived for the start of her 1:00 p.m.
shift;
ii) Another co-worker noted that the grievor appeared fit to work.
She acknowledged, however, that she was not close enough to
the grievor during their exchange to detect alcohol on her
breath;
iii) During the grievor’s meeting of August 4, 2011 with Ms. Peirce
and Ms. McIntyre, she admitted that she had been up all night
and had been drinking steadily with a neighbour between 9:30
p.m. on the evening of July 14th until about 5:45 a.m. the
following morning. Ms. McIntyre’s notes of the discussion
record that the grievor said she was still intoxicated when she
arrived for work; and
iv) In paragraph #48 of the Agreed Statement Of Facts, the grievor
agreed that the incident of July 15, 2011 was “probably the
result of an alcohol abuse problem”.
While it is difficult to accurately assess the extent to which the grievor was under the
influence of alcohol on July 15th, I think it more likely than not, given all of the
circumstances, that the Store Manager correctly assessed her fitness to work that day.
[23] The grievor agreed that she did not provide the information requested in Ms.
Peirce’s letter of August 8, 2011 by the August 31st deadline. Additionally, she did not
- 27 -
take any steps to arrange for enrolment in a suitable alcohol addiction treatment
program. It was the grievor’s evidence that the program recommended by the LCBO
was a residential program located in Guelph, Ontario and that it was one (1) month in
duration. The grievor testified that she would not have been able to attend such a
program, as she had five (5) pets at home and had no one to take care of them if she
was away for an extended period. She further explained that she could not afford to
board the animals. I note Ms. Peirce’s statement to the effect the grievor did not inform
her that she could not attend a residential treatment facility. During cross-examination,
the grievor indicated that she did not inquire about non-residential programs where she
would not be required to stay overnight. At another point, however, she stated that she
did ask a physician about other options. The grievor could not recall the name of the
doctor she spoke to and what information, if any, they may have provided. Additionally,
she could not remember if she asked Ms. Peirce for an extension of the August 31st
date. Ms. Peirce, in her evidence, advised that no such request was made by either the
grievor or the Union. The grievor also stated that she had no idea as to why she failed
to attend the subsequent meeting of September 8, 2011. She offered the following
comment by way of explanation: “I can’t explain anything from that period of time, I’m
sorry”.
[24] While the evidence is not entirely clear, it appears that Dr. Dhanya Jayalath was
the grievor’s personal physician between early 2008 and late 2014. Dr. Jayalath, a
number of other physicians and a Nurse Practitioner practiced out of Acton Medical and
Urgent Care. The office had regular hours for scheduled appointments, as well as a
Walk-In Clinic. At one (1) point in her evidence, the grievor testified that Dr. Jayalath
did not make any recommendations for treatment. That statement, however, is
- 28 -
inconsistent with a Patient Referral form filed as an exhibit in this proceeding. The
document records that Dr. Jayalath did refer the grievor to a psychiatrist, Dr. Erik
Mulder, on September 9, 2011 and that there was a later referral from the office to
another psychiatrist, Dr. Mary Alexander, in November, 2012. Both referrals described
the grievor’s chief complaint as “anxiety, query PTSD”. The grievor advised that she
was not entirely satisfied with Dr. Jayalath and that she later started to search for a new
doctor. She, ultimately, became a patient of Dr. A. Poldes towards the end of 2014.
[25] An appointment was scheduled for the grievor to see Dr. Mulder on March 8,
2012. The grievor failed to attend the appointment. In her words, it skipped her mind.
By way of explanation, the grievor advised that she was then staying with her daughter
in Hamilton, Ontario during a period in which the latter had two (2) surgeries for
complications arising from the birth of her first child. The grievor did not recall if she
asked for the appointment to be rescheduled.
[26] As mentioned above, the grievor was given a second referral to see Dr.
Alexander, another psychiatrist. To date, she has still not been seen by Dr. Alexander.
The grievor explained that one (1) of the doctor’s colleagues had passed away and that
Dr. Alexander, herself, experienced a period of illness. This Vice-Chair was told that the
grievor remains on Dr. Alexander’s waiting list but that an appointment has not been
scheduled. The grievor advised that she remains interested in pursuing an appointment
with, and receiving treatment from, Dr. Alexander.
[27] The grievor did not contact the Employee Assistance Program (EAP) following
her termination to ask about the resources available for alcohol abuse. Ms. Peirce
advised the grievor in the letter of termination that EAP services would be available to
- 29 -
her at no cost for a period of six (6) months. The grievor was unable to provide a
reason as to why she did not contact the service provider. The grievor testified that she
did contact Alcoholics Anonymous on one (1) occasion by telephone to ask about its
program. She elected against seeking their assistance, as she did not want to
repeatedly attend meetings to air her “dirty laundry”.
[28] The grievor advised that she turned to the Church for support. More specifically,
she attended a weekly Christian Education program at St. Alban the Martyr Anglican
Church in Acton. It was her evidence that the discussion within the program touched on
alcoholism, marriage and divorce. The grievor stated that she met two (2) other women
in the group who assisted her with respect to her issues. The grievor also became a
volunteer at the Church’s ‘Food for Life’ program. That service operates as a food bank
for people in need. It is clear that the programs offered at the Church were not
treatment directed. The grievor maintained, however, that her involvement with same
brought her comfort and helped her to implement change in her life. A character
reference prepared by the Rector of the Church was filed as an exhibit in this case. It
reads in part:
“……………………………………………………………………………
Throughout the four years that I have known Jean I have found her
to be an intelligent, trustworthy and reliable person of deep faith
and humility. She is friendly and sensitive to the needs of others
and always deports herself with calmness, sobriety and
compassion.
……………………………………………………………………………”
[29] It is apparent from all of the evidence that the grievor did not receive any
professional treatment for alcohol abuse between the date of her termination and the
- 30 -
last day of her testimony in December, 2015. No medical reports were filed with respect
to her condition in the period following her discharge.
[30] The grievor testified that she no longer abuses alcohol. She advised that she
does not need or crave it, as before, and that she does not have alcohol in her home. It
was her evidence that she stopped drinking “cold turkey”, and that she did not find it
difficult to do so. The grievor stated that, at most, she might have a drink twice a year.
By way of example, she referenced having a toast on New Year’s Eve. The grievor
maintained that she previously used alcohol in order to cope with her emotional issues.
She maintained that these issues have materially subsided given the separation from
her husband. The grievor noted that she now has two (2) grandchildren and a good
relationship with her daughter. In her words, she now has “a calmer, peaceful life” and
“everything is different, it is a whole new world”.
[31] The grievor insisted that alcohol would not impact her work if she was reinstated
into her former position at the LCBO. She maintained that, in that event, she would
comply with all of the Employer’s policies. The grievor testified that, looking back, she
can now see how her lateness and absences negatively impacted the workplace.
Additionally, she stated that she now appreciates it is wrong for an employee to report
for work under the influence. The grievor stressed that she loved her job at the LCBO.
She commented as follows: “If I could have a second chance to improve myself, I’d be
very happy”, and “I’m very sorry and ashamed, it wasn’t me back then”.
[32] The grievor has been unsuccessful in her efforts to secure other employment
subsequent to her termination. As of May, 2015, she is in receipt of monies from the
- 31 -
Ontario Works program. She also receives financial assistance from her step-father in
the form of loans.
[33] The parties presented extensive argument in support of their respective
positions. A substantial number of authorities were also filed with this Vice-Chair. They
are listed in an Appendix attached hereto. It is unnecessary to recite all of the
submissions in detail. The arguments and authorities have, however, been considered
at length prior to the preparation of this Decision. What follows below is a summary of
the parties’ positions with respect to the issues relevant to the resolution of the instant
grievance.
[34] Counsel for the Employer referenced the misconduct described between
paragraphs #34 and #70 of the Agreed Statement Of Facts. On her account, the
misconduct may be categorized as follows:
i) the grievor was absent from work on July 14, August 3,
August 10 to August 20, September 6 and September
8, 2011;
ii) the grievor was late for work on August 6 and August
7, 2011;
iii) the grievor failed to provide advance notification with
respect to her absences and instances of lateness of
July 14, August 6, August 7, August 10, August 20 and
September 8, 2011;
iv) the grievor failed to provide medical documentation
relating to her absence on August 3, 2011 and
provided insufficient medical documentation to support
her absences of August 10 to August 20, September 6
and September 8, 2011; and
v) the grievor reported to work under the influence of
alcohol and/or unfit for work on July 15, July 29,
August 2 and August 9, 2011.
- 32 -
[35] Counsel for the Employer submitted that the grievor’s record of being absent and
late served to undermine the foundation of the employment relationship, namely that an
employee provides their labour in return for compensation. She argued that employees
must report to work as scheduled and on time, failing which they are subject to
discipline in the absence of a legitimate excuse. Counsel observed that, prior to her
termination, the grievor was absent or late some seventeen (17) times over a period of
just less than two (2) months. She referenced Ms. Peirce’s evidence concerning the
adverse impact unscheduled absences and lates can have on both the store’s
operations and on other employees. Counsel noted that Ms. Peirce spoke of both the
actual and potential impact of the grievor being absent or late. She submitted that, with
the exception of the July 14th absence for which a timely medical note was provided,
there was no legitimate reason provided for any of the grievor’s absences or lates. This
Vice-Chair was asked to find that this flawed record of attendance warranted the
imposition of discipline.
[36] Counsel for the Employer noted that failure to provide advance notification
provides a separate and distinct cause for discipline, even if the absences and/or lates
are for legitimate reasons. She submitted that employees who expect to be absent or
late have a responsibility to notify the Employer of that fact, failing which they become
subject to discipline. Counsel, again, referenced Ms. Peirce’s evidence as to the
importance of giving such prior notice and the adverse impact on store operations that
can result from a failure to do so. She further noted that the grievor had been
previously disciplined, by way of letters of reprimand and suspensions, for failing to
provide the advance notice required by the Employer. Indeed from counsel’s
perspective, it is troubling that the grievor, in view of her history, did not make any real
- 33 -
effort to notify the LCBO in advance of the absences and lates in issue. Counsel
argued that there is an onus on the employee to establish they were unable to
communicate they would be absent or late prior to the start of their shift. On her view of
the evidence, the grievor here failed to adduce any evidence of incapacity or inability to
notify the Employer. She submitted that, in the circumstances, discipline was
warranted.
[37] Counsel noted that the grievor, as a consequence of her excessive absenteeism,
was instructed to obtain medical notes on the date of her absence from work. In this
regard, she referenced the content of Ms. Peirce’s letters to the grievor of February 25,
April 18, May 17 and June 13, 2011. The latter letter contains the following statement:
“……………………………………………………………………
..You have been advised that you are required to obtain a
medical note on the date of your absence from work and
that medical notes dated after the date of your absence are
unsatisfactory in supporting your absence. Notwithstanding
this, you have failed on repeated occasions to comply with
the requirement to obtain a medical note on the date of
your illness-related absence and have been disciplined as a
result of this.
……………………………………………………………………”
On counsel’s analysis, the above-cited requirement was reasonable given the grievor’s
high level of absenteeism over a considerable period of time. She reiterated that no
medical documentation was provided to substantiate the absence on August 3, 2011,
and that insufficient documentation was provided in respect of the absences of August
10 to August 20, September 6 and September 8, 2011. Counsel reviewed the facts
surrounding each of the aforementioned absences. She then asserted that none of the
grievor’s excuses for failure to comply with the Employer’s legitimate requirement, of
- 34 -
which she was fully aware, are credible and should, therefore, be rejected. Counsel
submitted that this failure on the part of the grievor merited a disciplinary response.
[38] Counsel reviewed the circumstances around the incidents of July 15, July 29,
August 2 and August 9, 2011 when the grievor was sent home for attending work under
the influence of alcohol and/or unfit for duty. She submitted that this represents serious
misconduct and observed that the grievor had been previously disciplined for similar
behavior. Counsel acknowledged that the grievor denied that she was under the
influence and unfit for work on July 15th and that she only admitted to being in that state
on the latter three (3) dates. She suggested that it is, ultimately, immaterial if the
grievor reported to work in that condition on only three (3), rather than four (4),
occasions given the serious nature of the misconduct. Counsel referenced Ms. Peirce’s
evidence that attending at work under the influence of alcohol is inconsistent with the
LCBO’s mission and vision, as well as its corporate policies. She also noted that the
following adverse impacts could result from this form of misconduct: the grievor’s ability
to effectively carry out her duties, such as the application of the Challenge and Refusal
policy, could be compromised; it could result in health and safety risks to both the
grievor and other employees working in the store; the store might be required to operate
short-staffed if a replacement was not available, with a consequent decline in the quality
of customer service; and the reputation of the LCBO could be diminished in Acton if the
grievor was observed to be intoxicated while at work. Counsel, in summary, submitted
that discipline was warranted for this type of serious misconduct. She stressed that
pursuant to the Social Responsibility At Work policy, an employee is subject to
discipline, up to and including termination, for reporting to work under the influence of
alcohol.
- 35 -
[39] Counsel for the Employer reviewed the grievor’s record for the period October
20, 2008 to June 13, 2011. In that timeframe, the grievor received two (2) counsellings,
three (3) letters of reprimand, a one (1) day suspension, a two (2) day suspension, three
(3) three (3) day suspensions, and a five (5) day suspension. Counsel noted that none
of the discipline was contested through the filing of a grievance. She observed that the
grievor was warned on several occasions that her misconduct could no longer be
tolerated and that her continued employment was at real risk. Reference was made to
Ms. Peirce’s letters of June 13 and June 21, 2011. An excerpt from the former is set out
at paragraph #12 of this Decision. The latter correspondence contains the following
caution:
“Jean, I am increasingly troubled by your conduct and
am extremely concerned with your well being. I truly
hope that you will take the gesture and comments that
we have made in this letter seriously. I implore you to
seek out professional help in dealing with your issues
and again warn you that your employment is in serious
jeopardy if your misconduct continues.”
Counsel further noted that notwithstanding these warnings, the grievor continued to
engage in similar misconduct, as described in paragraph #34 above.
[40] Counsel for the Employer emphasized that the LCBO elected to defer the
imposition of discipline following the grievor’s disclosure at the meeting of August 4,
2011 that she might have started to have an alcohol abuse problem. As mentioned
earlier, the grievor did not provide the information requested, relating to enrolment in a
suitable alcohol addiction treatment program, by the August 31st deadline; continued to
engage in further misconduct; and failed to attend the meeting scheduled for September
8th to discuss these issues. Counsel submitted that, given all of the circumstances, the
- 36 -
Employer did not rush to termination. From her perspective, the grievor was given a
number of opportunities after July 14, 2011 to demonstrate that she was capable of
meeting her employment obligations. Counsel argued that there was no indication at
the time of termination that some lesser sanction would result in a change in behavior
on the part of the grievor. In her words, the Employer reached the point where “enough
was enough”. This Vice-Chair was asked to conclude that termination of the grievor’s
employment on September 20, 2011 was justifiable under the principles of both
progressive discipline and culminating incident.
[41] It is the position of the Employer that the grievor’s reported alcohol abuse
problems and her personal, emotional and psychological issues relating to spousal
abuse do not warrant the substitution of a lesser penalty for all of the reasons set out
below.
[42] Counsel for the Employer acknowledged the LCBO had a long-standing
suspicion that the grievor had an alcohol abuse problem. It was her submission,
however, that this suspicion, coupled with the grievor’s statement that she did have
such a problem, does not mean that she, in fact, had an addiction at the relevant time or
that she was unable to control her alcohol abuse. On counsel’s reading of the
authorities, medical evidence is required for purposes of establishing an addiction. By
way of example, the Arbitrator in Accuride Canada Inc. and National Automobile,
Aerospace, Transportation and General Workers Union of Canada (CAW-Canada),
Local 27 (Bishop Grievance) made the following comment with respect to drug
addiction:
- 37 -
“5………………………………………………………………
…………If one is claiming an illness, the illness must be
confirmed by cogent and objective medical evidence of
such. In other words, a self-diagnosis of drug addiction
is no more compelling as proof of illness than a self-
diagnosis of cancer or heart disease. Proof of illness
needs a competent, objective medical opinion in that
regard, or, at the least, proof of drug abuse amounting
to an addiction requires confirmation of that from some
competent professional dealing in substance abuse.”
Counsel stressed that the grievor failed to provide any medical or other independent
evidence to establish that she had an addiction or that she was an alcoholic. Indeed, on
her analysis, the grievor herself provided little evidence about her drinking habits in the
period from July to September, 2011. Counsel suggested that drinking too much
alcohol with a friend on a night before a scheduled shift does not demonstrate the
grievor was an alcoholic. Rather, it may simply reflect the exercise of poor judgment.
Counsel further suggested that an alcoholic would not likely be able to stop drinking
“cold turkey”, as claimed by the grievor. In summary, it was her submission that the
grievor failed to meet the onus of establishing she was an alcoholic.
[43] Counsel for the Employer maintained that the Union’s case in-chief was primarily
focused on alcohol abuse in terms of the excuse offered for the grievor’s behavior. She
observed that evidence of domestic abuse, and the grievor’s mental state at the time of
the misconduct, arose largely from her cross-examination. Counsel advised that the
LCBO does not dispute the prior history of domestic abuse. She noted, however, that
there is a lack of evidence with respect to the following matters: whether the grievor
actually received a concussion in December, 2010; whether the spousal abuse resulted
in the grievor experiencing symptoms of post traumatic stress disorder, as claimed; the
impact of domestic abuse on the grievor’s mental state; and why the grievor would
- 38 -
continue to experience stress in the period following the separation from her husband
and, most notably, during the period from July to September, 2011. It was counsel’s
submission that medical evidence should have been presented with respect to these
issues. She suggested that, in the absence of such evidence, this Vice-Chair can only
speculate on how the domestic abuse might have impacted the grievor’s actions.
[44] Counsel for the Employer argued that even if this Vice-Chair were to accept that
the grievor had an alcohol addiction, or that she was experiencing some mental
disability related to the prior domestic abuse, there is still a requirement to establish a
nexus between these conditions and the misconduct engaged in. More specifically, she
noted that no medical evidence was led to prove that either condition contributed to the
misbehavior. On her assessment of the evidence, the grievor did not connect her
absences and lates, her failure to provide advance notice in respect of same, or her
failure to provide the required medical documentation, to either her drinking or to a
specific medical condition. Counsel observed that, instead, the grievor provided a more
general excuse, namely, that she was not herself, was not in a good frame of mind, was
under a lot of stress and wasn’t thinking clearly. It was her submission that, without
supporting medical evidence, such a general claim is insufficient to establish the grievor
lacked the capability to meet her employment obligations or to warrant any reduction in
the disciplinary penalty. Counsel referenced the following awards, inter alia, in support
of this submission: Cami Automotive Inc. and Canadian Auto Workers, Local 88 (J.M.
Grievance); Bosal Canada and Canadian Auto Workers, Local 1837 (Curry Grievance);
Dominion Castings Ltd. and United Steelworkers of America, Local 9392 (Krasic
Grievance); and Air Canada and Canadian Union of Public Employees (Airline Division)
- 39 -
(Young Grievance). The following passage from the Bosal Canada award captures the
gist of counsel’s argument:
“4. Any question of diminished mental capacity
affecting work performance and conduct in the
workplace is, of course, a medical question, which can
be established only by a qualified medical opinion in
that regard. The medical opinion must be cogent and
persuasive and must establish not only an altered
mental state during the relevant period, but, also, a
direct causal connection between the individual’s
mental state and his particular conduct or behavior in
the workplace. Quite obviously, outside mental
stresses of one kind or another affect many people
today but they do not necessarily always affect an
employee’s ability to properly carry out his
responsibility as an employee in a particular workplace.
Again, a causal connection must be established
between the two.”
[45] Counsel further argued that even if this Vice-Chair were to accept that the grievor
suffered from alcohol abuse, or had a psychological condition, and that such conditions
were a factor in all of her misconduct, there remains an onus on the Union to show that
the grievor has rehabilitated herself and has a good prognosis if returned to the
workplace. It is the position of the Employer that such onus has not been satisfied in
this case.
[46] Counsel asserted that this dispute is not an accommodation case, as in Central
Okanagan School District No. 23 v. Renaud. She, nevertheless, submitted that an
employee, such as the instant grievor, must take all of the necessary steps to ensure
they can perform all of their required duties. This, in her view, includes a responsibility
to address any condition which impairs such performance. Counsel maintained that if
an employee has failed to address the situation, they may be properly terminated, as
long as the principle of progressive discipline has been correctly applied. She stressed
- 40 -
that in such a scenario, the employee is not punished for having a condition. Rather,
they are terminated because the employment relationship is no longer viable. This
approach is reflected in the following passages from the award in Uniroyal Goodrich
Canada Inc. and United Steelworkers of America, Local 677 (N.S. Grievance):
“111 An employer can discharge an employee for
inadequate performance or failure to perform the
essentials of a job. Using a traditional approach to this
case, one could easily conclude that the Company had
just cause for discharging the grievor on August 4
because he reported to work drunk despite his being
disciplined and counselled about such behavior in the
past. The next question would be whether the grievor’s
alcoholism would be a mitigating factor calling for the
arbitrator to exercise the jurisdiction or discretion to
substitute another result. The answer to this would
depend on whether the evidence would support the
conclusion that the grievor’s alcohol dependence is now
in a state of remission or whether he has achieved
sufficient rehabilitation to make the re-establishment of
the employment relationship viable……………………….
112…………………………………………………………….
………………..An illness or condition which prevents an
employee from maintaining adequate attendance can be
grounds for termination of a contract of employment. The
reason for this is that an employer is contractually entitled
to the benefit of its bargain with the employee. Regular
attendance is part of that bargain. Chronic absenteeism
has significant cost impact upon an employer. Therefore,
while an employee may have blameless or innocent
reasons for his/her absences, employers are not
expected to bear unusual costs and disruptions for
extended periods of time. Therefore, termination may be
appropriate, not as a form of punishment, but in order to
sever an unviable employment relationship. Alcohol
dependence and its effects upon the employment
relationship can be approached in a similar manner.
113 As an arbitrator under the Labour Relations Act, I
have the jurisdiction and the discretion to look at the
essential elements of the dispute between these parties.
The arguments of counsel and their clients have
touched on concepts of discipline, termination and
human rights principles. But essentially, this dispute
- 41 -
must be looked at in terms of whether the Company was
justified in terminating the grievor’s employment. While
the discharge letter itself indicates that the termination
was “for cause”, and while concepts of
“blameworthiness” are too easily attached to a situation
where a person reports for work drunk, it is more
appropriate to view this case as essentially one
concerning termination. For a grievor suffering from
alcohol dependence, as in cases of innocent
absenteeism, the question is not whether punishment is
appropriate. The question is whether the grievor’s past
record establishes an unacceptable level of
performance and whether the future prognosis is one
that can anticipate a viable employer/employee
relationship. Therefore, the approach should not be to
look for fault or blame in the case of an alcoholic, but to
focus on whether the legitimate contractual expectations
of the employer can be achieved.”
[47] Counsel argued that in determining whether a viable employment relationship
can be achieved, regard must be had to the following: the LCBO’s efforts prior to
termination to assist the grievor with respect to domestic abuse and her suspected
problem with alcohol abuse; the grievor’s efforts, or lack of efforts, to address the
problems; and the grievor’s conduct up to the point of termination. In this regard,
counsel referenced the following in the course of an extensive review of the facts:
i) In 2007, the LCBO paid for an independent medical
examination for purposes of obtaining treatment
recommendations for alcohol and spousal abuse.
Additionally, it covered the cost for the grievor to
subsequently attend the individual counselling
sessions. The grievor testified that she found the
aforementioned sessions to be helpful, but felt that
they ended prematurely. Counsel noted that the
grievor did not then pursue other options, such as
asking the LCBO to pay for more sessions or
requesting a referral from her family physician. She
suggested that the grievor was not really committed
to getting more treatment at the time. In this
regard, counsel observed that the grievor chose not
to pursue the group treatment recommended by Dr.
Nemeth. In her judgment, the grievor would have
- 42 -
made greater efforts, if she truly wanted to address
her issues and maintain her recovery;
ii) The grievor did not leave her husband in 2007,
contrary to what she told Dr. Nemeth in August of
that year. Upon the grievor’s return to work in April,
2008, there were further instances of spousal
abuse, as documented in paragraphs #16 to #19 of
the Agreed Statement Of Facts. Counsel noted
that the LCBO in this period responded as follows:
it encouraged the grievor to contact her counsellor
at her prior treatment program, and her personal
physician, to secure assistance; urged her to get
help and reminded her about the services available
through the EAP; offered flexibility in terms of the
grievor’s schedule, while she addressed the matter;
and indicated a preparedness to transfer the grievor
to another store and to develop a response plan
should her husband attend at the workplace.
Counsel considered it material that the grievor did
not accept any of these offers and that she did not
request any other accommodation;
iii) The grievor’s misconduct continued in the period
following the separation from her husband in
December, 2010. The misconduct occurring
between February 25 and June 13, 2011 is set out
in paragraphs #27 to #31 of the Agreed Statement
Of Facts. Counsel referred to Ms. Peirce’s letters
of February 25 and June 13, 2011 and noted that,
prior to imposing discipline, Ms. Peirce asked the
grievor if she had an alcohol abuse problem and
undertook that, if she acknowledged to having such
a problem, the LCBO would accommodate same
and assist with the facilitation of treatment. The
grievor, on those occasions, was also reminded
about the availability of the EAP. Counsel stressed
that the grievor repeatedly denied that she had an
alcohol abuse issue or an addiction, and that she
never requested any accommodation in respect of
either spousal or alcohol abuse;
iv) The Employer decided not to impose discipline in
response to the grievor’s absences from work
between June 13 and June 16, 2011. As noted at
paragraph #33 of the Agreed Statement Of Facts,
the grievor informed Ms. Peirce that the absences
occurred as a consequence of her being raped in
- 43 -
an alley by a stranger. As noted therein, the LCBO
implored the grievor to get professional help to deal
with her issues and warned that her employment
was in serious jeopardy if the misconduct
continued; and
v) Notwithstanding the above warning, the grievor’s
misconduct continued. The specifics of same are
detailed in paragraphs #34 to #47 of the Agreed
Statement Of Facts. This series of events led
directly to the meeting of August 4, 2011 at which
the grievor finally acknowledged that she had an
alcohol abuse issue. As a consequence of this
acknowledgement, the LCBO responded with the
proposal that the grievor attend a suitable addiction
treatment program. It further elected to defer
discipline for the prior instances of misconduct
pending confirmation from the grievor that she was
actively seeking treatment. Despite this
arrangement, the grievor subsequently engaged in
the misconduct set out in paragraphs #50 to #62 of
the Agreed Statement Of Facts. Counsel
emphasized that the Employer nevertheless stuck
with the August 31st deadline for the provision of the
required information pertaining to treatment. She
further observed that the grievor was not
immediately terminated because of her failure to
provide the necessary information by that date.
Instead, a meeting was scheduled for September 8,
2011 to discuss all of the outstanding concerns.
Counsel noted that the grievor failed to attend this
meeting.
[48] In summary, counsel for the Employer reiterated that the LCBO did not act hastily
in terminating the grievor’s employment. In her view, the grievor was given every
opportunity to secure treatment and to demonstrate that there would be a positive
prognosis going forward. She noted that the grievor failed to take advantage of these
opportunities, despite having been cautioned on several occasions that her continued
employment was at risk. Counsel argued that the grievor also failed to provide any
clear explanation for why she did not provide the requested documentation by August
31, 2011. She suggested that all the grievor did at the time of her termination was to
- 44 -
obtain a referral to a psychiatrist, which led to an appointment being scheduled for
March, 2012. Counsel maintained that this initiative was simply not enough given all of
the circumstances. From her vantage, the grievor sought no other treatment or support
from the time of her discharge to the date of the aforementioned appointment, despite
having ready access to a number of health care providers. It was counsel’s submission
that the grievor merely offered excuses for her failure to seek and obtain the necessary
treatment for alcohol abuse or any other personal or psychological issue she may have
been experiencing. For these reasons, this Vice-Chair was asked to accept Ms.
Peirce’s assessment that the employment relationship was no longer viable and that
there was no potential for positive progress in the future given the grievor’s history with
the LCBO.
[49] Lastly, counsel repeated that the Employer was fully prepared over a lengthy
period to accommodate the grievor’s issues. It was her submission, simply put, that the
grievor failed to do her part in this process. She referred to the following passages from
the award in New Flyer Industries Limited and National Automobile, Aerospace,
Transportation and General Workers Union of Canada (CAW-Canada), Local 3003
(Salvador Grievance):
“58 Thus, based on the foregoing high authority, the
complaining employee has a duty “to facilitate the
search for an accommodation”. No search can begin
without knowledge of the problem. The grievor in the
present case was obligated to disclose his illness to
the Company and ask for assistance in dealing with it.
Only then could a reciprocating employer duty be
triggered. See Mitchnick and Etherington, Labour
Arbitration in Canada, at p. 249. While it was an
Agreed Fact at the arbitration hearing (Ex. 3, para.4)
that the grievor has been addicted to alcohol and/or
drugs throughout his employment, the Company
- 45 -
alleged that the grievor was not forthcoming about his
needs at the material times. The Company was
therefore limited in what it could offer as an
accommodation. On the whole, the evidence supports
this argument and I accept it.
………………………………………………………………
60……………………………………………There was no
Union evidence to show that a request was made by
the grievor or anyone on his behalf for support and
assistance in 2006 and thereafter. I accept the
Company’s explanation that it would have been
inappropriate for management to intervene in the
grievor’s personal life without invitation. Clearly the
grievor was aware from his experience that the
Company was open to helping. As cited in the
authorities above, employees requiring
accommodation are under a duty to facilitate the
search for accommodation. Here the grievor did not
bring to his employer’s attention an ongoing need for
help with his disability……………………..”
[50] Counsel next addressed the post-discharge evidence relating to the grievor’s
efforts to obtain treatment for alcohol abuse and for any personal or psychological
issues stemming from the domestic abuse. At the outset, she emphasized that the
grievor has not received any formal treatment to address her problem with alcohol. No
evidence was led to establish that the grievor has consulted with any medical
professional or treatment agency concerning this issue. Counsel noted, in this regard,
that the grievor elected against participating in the Alcoholics Anonymous program.
Instead, she sought the support of her Church and became involved in its programming.
Counsel argued that such involvement does not equate with treatment. It was her
submission that there was an obligation on the grievor to secure help from an
appropriate medical practitioner or facility, similar to what would be required in an
accommodation case. The award in Burns Meats and United Food and Commercial
Workers Union, Local 32 was referenced on this point.
- 46 -
[51] Counsel argued that this Vice-Chair should not accept, or rely on, the grievor’s
assertion that she no longer abuses, or is addicted to, alcohol. She described this as a
“concerning statement”, given the perception of many in the field that “once an
alcoholic, always an alcoholic”. Counsel viewed it as significant that the grievor could
not say, with any precision, when, in fact, she ceased drinking. She noted that no family
members, friends or clergy were called to support the grievor’s claim to sobriety. In her
judgment, more is required than just the grievor’s statement to the effect she no longer
has an issue with alcohol. Counsel referenced the fact that the grievor told Dr. Nemeth
in 2007 that she had stopped drinking. She observed that the grievor had obviously
resumed the consumption of alcohol subsequent to that statement being made and
suggested that there is no reason to be confident the grievor will not start drinking
again. Counsel submitted that it is material that no medical evidence was presented to
show that the grievor has been rehabilitated and no longer has a problem with alcohol.
Put another way, there is no reliable evidence that the grievor will not again abuse
alcohol if reinstated.
[52] In the course of her submissions on this point, counsel reviewed the award in
Ontario Public Service Employees Union and Liquor Control Board of Ontario
(Carmichael Grievance). The relevant passages therein read:
“86 However, in the alternative, even if his condition
is that of an undiagnosed drug addict, the grievor has
not convinced me that his discharge should be
overturned and that he should be returned to work at the
LCBO. In addition to not having any medical evidence
to support a diagnosis of addiction, I have no medical
evidence to support that the grievor has been
rehabilitated and is fit to return to work.
- 47 -
87 He has never attended any formal rehabilitation
therapy. He never undertook a residential program
or received any type of counselling from a trained
medical professional. At one point, he attended
some NA meetings with Mr. Dignard but he is no
longer doing so. I have absolutely no medical
evidence before me to establish that the grievor has
been rehabilitated and that the problems that led to
his discharge have been resolved and are under
control. It makes no sense to reinstate the grievor
when he has not received any treatment for the
condition that allegedly gave rise to the theft in the
first place……………………...….
89 Even if the union had invoked the Human Rights
Code, the duty of an employer to accommodate an
employee with a disability does not eliminate the
employer’s right to discipline or discharge an
employee who commits a serious employment
offence. The employee also bears an obligation to
facilitate the accommodation process by getting the
help which is needed from the appropriate medical
facility or individual. There is no evidence of
rehabilitation in this case. See in this regard
Hamilton (City) v. Amalgamated Transit Union,
Local 107 155 L.A.C. (4th) 337 (Knopf) and Canada
Post Corp. and Canadian Union of Postal
Workers (Zachar Grievance) (1998) C.L.A.D. No.
811 (Shime).”
[53] Counsel for the Employer referenced the grievor’s claim that she experienced
psychological issues, and possibly symptoms of post traumatic stress disorder, as a
consequence of the long history of spousal abuse. She viewed it as material that the
grievor failed to obtain any treatment for these conditions between her termination in
September, 2011 and December 16, 2015, the latter being the last day on which she
presented evidence in this proceeding. Counsel advanced the following arguments on
this aspect of the case:
i) Insufficient evidence was presented to show that
the grievor was unable to attend the scheduled
appointment with Dr. Mulder in March, 2012.
- 48 -
Counsel noted that the grievor’s daughter was not
called as a witness to corroborate her mother’s
inability to attend. From her perspective, it is likely
that Dr. Mulder’s office would have rescheduled the
appointment if there was a legitimate reason why
the grievor missed the initial one. In the alternative,
counsel maintained that, if the grievor was not
welcomed back at this psychiatrist’s office, she
should have gone to her family physician in a timely
fashion in order to get another referral. She
observed that the subsequent referral to Dr.
Alexander did not occur until December, 2012.
Counsel insisted that, in cross-examination, the
grievor was unable to provide a satisfactory
explanation for this delay. It was her submission
that, in the circumstances, it was incumbent on the
grievor to obtain another referral in a more timely
manner;
ii) Counsel noted that the grievor was critical of Dr.
Jayalath and that she asserted that this physician
did not offer any treatment recommendations.
Counsel submitted that the latter assertion is at
odds with the evidence, as it is apparent that Dr.
Jayalath made the referrals to both Dr. Mulder and
Dr. Alexander. Additionally, Dr. Jayalath had
previously suggested that the grievor seek out the
services of a local shelter as a way of addressing
the spousal abuse. Counsel argued that an
adverse inference should be drawn against the
grievor given the Union’s failure to call Dr. Jayalath
to testify on behalf of the patient. She stated that,
in any event, if the grievor was not satisfied with the
medical care provided by her family physician,
there were a number of options available to her with
respect to securing treatment for the conditions
arising from the domestic abuse. Counsel
emphasized that it took the grievor until 2014 to find
a new doctor. She referenced the fact that Dr.
Poldes was also not called as a witness in support
of the grievor’s case;
iii) Counsel viewed it as significant that the grievor has
still not seen Dr. Alexander. Rather, she remains
on this psychiatrist’s waiting list. In counsel’s
judgment, the grievor was bound to do more than
just wait for an appointment. Simply put, she
argued that there is no evidence before this Vice-
- 49 -
Chair as to the current state of the grievor’s
psychological condition and her prognosis moving
forward. Counsel submitted that, as a
consequence, there is no basis to support a
reinstatement to employment. She referred to the
following authorities, inter alia, on this point:
Grober Inc. v. United Food and Commercial
Workers, Local 175 (Dwyer Grievance); and J.I.
Case Co. and United Steelworkers of America,
Local 2868 (McKee Grievance); and
iv) Counsel further suggested that there is no
independent evidence to support the grievor’s claim
that her husband is no longer living with her and is
out of her life. In other words, the grievor has not
properly established that the source of her stress
has been resolved and that she is now capable of
meeting her employment obligations. Counsel
argued that the grievor’s daughter or friends should
have been called to give evidence that the grievor
is now a different person. In her view, the grievor’s
personal problems should not override the
Employer’s legitimate interests. Counsel submitted
that, in the circumstances of this case, it would be
inappropriate to provide a last chance to this
grievor, particularly so given the numerous
opportunities provided to her to confront and
address her issues. This Vice-Chair was cautioned
against any fine-tuning of the Employer’s
disciplinary response. The following authorities,
inter alia, were cited in support of these
submissions: Raven Lumber Ltd. and International
Woodworkers of America, Local 1-363 (Bains
Grievance); Toronto District School Board and
Canadian Union of Public Employees, Local 4400
(W. Grievance); Toronto District School Board and
Canadian Union of Public Employees (G.
Grievance); and Rolland Inc. and Canadian
Paperworkers Union, Local 310.
[54] In summary, it is the LCBO’s position that, given the prior application of
progressive discipline; the extensive efforts made to accommodate and assist the
grievor to the point of termination; and the lack of any evidence of formal treatment and
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a positive prognosis, termination of the grievor’s employment was a reasonable
response in all of the circumstances.
[55] Counsel for the Employer submitted that other mitigating factors are not
persuasive and do not support the substitution of a lesser penalty. More specifically,
she referenced the following: the grievor’s record of discipline is excessive; her period
of active employment, after deducting the lengthy leave of absence between October,
2006 and April, 2008, is only five and one-half (5 ½) years in duration; and the fact that
economic hardship is not unusual in cases of this nature. Additionally, counsel
emphasized that the grievor displayed a lack of candour when giving her evidence. She
maintained that the grievor’s evidence on a number of material issues was vague,
inconsistent and not credible. On her analysis, the grievor failed to acknowledge any
wrongdoing and appeared to lack insight as to the negative impact her conduct had on
the Employer’s operations. Counsel suggested that the grievor’s conduct and
demeanour during the course of the hearing demonstrates that the employment
relationship is not capable of being restored. A number of authorities, including the
following, were cited in support of this submission: Voith Fabrics and U.N.I.T.E., Local
720T (Kamara Grievance); Re Great Atlantic and Pacific Company of Canada and
Retail Wholesale and Department Store Union, Local 414; Ontario Public Service
Employees Union and Ministry of Community and Social Services (Aboutaeib
Grievance); City of Toronto and Canadian Union of Public Employees, Local 79
(Kourtsidis Grievance); and Labourers International Union of North America, Local 506
and Canadian Waste Services Inc. (Minto Grievance). The following passage from the
last referenced award is reflective of the general approach taken in these cases:
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“166 In ordinary human terms, an arbitrator is unlikely
to be favourably disposed towards a witness who has
been less than candid. It is hard to “give the grievor a
break” when he has sought to mislead. Quite apart
from that, though, in determining whether the
employment relationship can be “repaired”, one of the
key factors that should be considered, is the grievor’s
potential for rehabilitation-that is, whether it can be said
that the grievor has “learned his lesson”, and will
thereafter conform to expected standards of behaviour.
And, in that context, a lack of candour during the
hearing, merely compounds the earlier failure to
acknowledge any faults. It suggests that the grievor
has learned nothing from the predicament in which he
finds himself, and is likely to do the same thing again, if
he thinks that he can get away with it-or, as in the
instant case, if he thinks that the company may not be
able to “prove” its case.”
Lastly, counsel argued that reinstatement should not be ordered on compassionate
grounds alone.
[56] For all of the above reasons, this Vice-Chair was asked to dismiss the instant
grievance.
[57] Counsel for the Union submitted that the grievor, in fact, is an alcoholic and that
her alcohol abuse was responsible, in part, for the conduct which led to the termination.
She argued that the Employer was aware, or at a minimum should have been aware,
that the grievor had a serious issue with alcohol over the course of her employment with
the LCBO. In this regard, counsel referenced the following:
i) Following the incident in September, 2006, the
Employer required the grievor to undergo an
independent medical assessment for the purposes
of obtaining treatment recommendations for both
alcohol and spousal abuse. Dr. Nemeth’s
subsequent report of August 17, 2007 noted that
the grievor had a history of alcohol dependency and
abuse;
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ii) Mr. Wilkinson’s letter to the grievor of January 21,
2010 followed an incident on December 11, 2009
where the grievor reported to work late and was
under the influence of alcohol and unfit to work. In
his correspondence, the District Manager confirmed
that the LCBO would “accommodate an admitted
alcohol addiction and assist in facilitating
treatment”. He added that the grievor had a duty to
participate in her accommodation by admitting to
and taking steps to address her alcohol addiction
and by providing documentation supporting her
efforts. As the grievor denied having an alcohol
abuse problem, discipline in the form of a written
reprimand was imposed. The letter contains the
following paragraph:
“The LCBO suspects that you have an
alcohol abuse problem. However, given
your repeated denials at the January 8
meeting the LCBO will accept that you do
not have an alcohol abuse problem. You
are advised that the LCBO remains
prepared to accommodate an admitted
alcohol problem and requests that you
advise us if and when you are prepared to
attend treatment.”
iii) Ms. Peirce’s letter to the grievor of February
25, 2011 documents the following: the grievor
attended at her workplace on January 14, 2011
to drop off a doctor’s note pertaining to an
absence which commenced on January 11th;
prior to leaving the store, the grievor purchased
a bottle of rum; later that evening the grievor
called the store numerous times and sounded
intoxicated; the grievor failed to report for her
shift on January 15th; the grievor later advised
that she was not able to work the shift, as she
had fallen asleep on the kitchen floor; and the
grievor denied she had consumed any of the
rum purchased on the prior day. In her
correspondence, Ms. Peirce reiterated the
LCBO’s willingness to accommodate the
grievor if she admitted to an alcohol addiction
and took steps to address same. Ms. Peirce
noted that the grievor had done neither as of
the date of her letter;
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iv) Ms. Peirce’s letter to the grievor of June 13,
2011 references an incident on May 20, 2011
in which the police entered the grievor’s
residence and forcibly took her to an area
hospital to see a psychiatrist. This occurred
after LCBO staff contacted the police and
expressed concern about her condition. In her
correspondence, Ms. Peirce stated that the
LCBO strongly suspected that the grievor had
an alcohol abuse problem and repeated its
willingness to accommodate same and
facilitate related treatment, as long as the
grievor was prepared to admit to the problem
and take the necessary steps to address it;
v) Ms. Peirce’s letters to the grievor of July 15
and August 2, 2011, which were sent as a
consequence of the grievor attending at work
on July 15, July 29 and August 2, 2011 under
the influence of alcohol and unfit for work;
vi) Ms. Peirce’s letter to the grievor of August 8,
2011, the material part of which is set out at
paragraph #13 of this Decision; and
vii) Ms. Peirce’s letter to the grievor of August 12,
2011 which addressed the grievor’s conduct in
the period between August 6th and August 12th.
This included one (1) instance on August 9th
when the grievor reported for work under the
influence of alcohol and unfit for duty. Ms.
Peirce warned the grievor that her employment
with the LCBO would likely be terminated
unless she satisfied her duty to participate in
her accommodation by taking steps to address
the alcohol addiction and providing the
documentation requested.
[58] Counsel for the Union submitted that, based upon the above record, this Vice-
Chair should reject any suggestion the Employer was not completely aware that the
grievor struggled with the disability of alcoholism. She observed that such a suggestion
would be inconsistent with the statement contained in many of the letters forwarded to
the grievor to the effect that the LCBO was prepared to accommodate her alcohol
abuse. Counsel also noted that much of the conduct referenced therein is common to
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persons struggling with an addiction. In the alternative, she argued that, even if the
Employer was not certain as to the existence of a disability given the grievor’s denials
and/or the lack of medical evidence, a sophisticated Employer, such as the LCBO,
ought to have known the grievor was disabled.
[59] Counsel for the Union argued that the test in cases of this nature is whether the
Employer knew or ought reasonably to have known that the grievor was suffering from a
disability: see Wall v. The Lippé Group at paragraph 80. On her view of the evidence,
this question should be answered in the affirmative. From her perspective, all of the
indicators pointed to the existence of a disability. Counsel submitted that, at the very
least, the Employer was obligated to ask for medical evidence, such as an independent
medical examination, in order to confirm the existence of a disability requiring an
accommodation. She asserted that the Employer improperly focused on the
deficiencies in the medical notes provided by the grievor, rather than on determining
what illness was causing, or contributing to, her problems in the workplace. Counsel
further submitted that the grievor’s denials about having an alcohol abuse problem and
her failure to voluntarily seek assistance for this condition did not vacate the Employer’s
duty to further inquire about the grievor’s condition and to take the appropriate steps to
accommodate same. She observed that the authorities have recognized that
“alcoholism is a disease of denial”: see United Food and Commercial Workers
International Union, Local 175 and Fearman’s Pork Inc. at page 35 and Brewers
Distributor Ltd. and Brewery, Winery and Distillery Workers Union Local 300 at
paragraph 88.
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[60] Counsel for the Union argued that if the Employer had required the grievor to
provide more specific medical documentation, and if such information confirmed an
alcohol abuse issue, it would have triggered “a higher duty to accommodate”, which
would have necessarily involved the Employer, the Union and the grievor. In
substance, she claimed that the Employer’s failure to make this inquiry amounted to a
lost opportunity to properly address the grievor’s problems with alcohol. Counsel
maintained that the Employer’s request, as documented in Ms. Peirce’s letter of August
8, 2011, that the grievor arrange for enrolment in a suitable alcohol addiction treatment
program was an insufficient response. This Vice-Chair was asked to conclude that the
LCBO should have made greater efforts to assist the grievor at the time and that the
grievor should not have been made responsible for obtaining her own treatment. On
counsel’s analysis, the Employer ignored the fact that the grievor was suffering from a
disability requiring an accommodation. Instead, it opted to characterize her actions as
misconduct and to apply a regime of progressive discipline.
[61] Counsel for the Union argued that a hybrid analysis should be applied to the
facts of this case. More specifically, she stated that a distinction should be drawn
between culpable conduct resulting from voluntary action and non-culpable conduct
attributed to a compelling disability or addiction. Counsel submitted that progressive
discipline may be applied for the former type of misconduct, but that a more corrective
and rehabilitative response is required for conduct which is viewed as non-culpable.
[62] The hybrid approach is described in Kemess Mines Ltd. and International Union
of Operating Engineers, Local 115. The following passages from that award set out the
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rationale for this approach in cases where there is a mix of addiction driven conduct and
voluntary conduct:
“57 That takes me to the earlier-cited decision of the
Labour Relations Board in Fraser Lake Sawmills. As
the Board notes at para.36 of the decision, having first
referred to Raven Lumber Ltd. (1986), 23 L.A.C. (3rd)
357 (B.C. Arb.) (Munroe), alcoholism and other
addictions have for some period been treated as a
medical condition “..for which a non-culpable response
is appropriate where the disease prevents an employee
from performing his or her job or from attending work
regularly or being unable to meet the obligations of his
or her job because of the disease”. Continuing at para.
37, the Board says this:
A basic premise of the culpable, non-
culpable paradigm is that discipline has
no place where there is no blameworthy
conduct. The object of discipline is to
bring inadequacies in work performance
or conduct to an employee’s attention so
as to correct or prevent its recurrence.
That object cannot be achieved, nor is it
consistent with basic notions of justice,
for discipline to be imposed when the
conduct at issue is beyond or outside the
control of the employee.
58 However, as the Board then observes at
paras. 38-39:
In the context of issues involving
addiction and workplace misconduct, a
review or the arbitration cases reveals a
spectrum of facts and issues. At one end
of the spectrum, the addiction compels or
drives the grievor’s behavior to the extent
of the grievor in effect having no control
(at least control which should attract
discipline) over his or her actions. At the
other end of the spectrum there is
addiction, but it is found to not have a
causal link to the workplace misconduct.
In between these two ends of the
spectrum are what could be terms (sic.)
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hybrid facts and cases. In the hybrid
context, there is addiction which is
directly related to or has a causal
connection to workplace misconduct by
the employee, but the addiction is not of
such a nature so as to remove the
grievor’s control or exercise of choice in
respect to the misconduct. In this hybrid
context, there is thus a mix of causes, a
mix of addiction driven conduct (i.e., non-
culpable conduct) and voluntary conduct
(i.e., culpable conduct).”
[63] Counsel for the Union argued that it is difficult for the Employer to claim that no
nexus exists between the grievor’s behavior and her alcohol abuse problem. In this
regard, she observed that, in its letters, the Employer concluded on multiple occasions
that there was a connection between the grievor’s alcohol consumption, or her purchase
of alcohol on the day prior to an absence, and the absence itself. Additionally, counsel
noted that a nexus is self evident on the occasions the grievor arrived at work under the
influence of alcohol and unfit for duty.
[64] Counsel reviewed the grievor’s conduct from 2008 until the date of her
termination in respect of which she received either counselling or discipline. During the
course of her argument, she highlighted and listed which conduct should be considered
as non-culpable in nature and what, in contrast, could be viewed as culpable. After
completing this exercise, counsel submitted that the incidents of culpable conduct were
relatively minor in nature and related primarily to attendance and the provision of
insufficient medical documentation. She argued that while such misconduct merited
some discipline, and possibly a lengthy suspension, it did not support or justify the
ultimate sanction of discharge. To be clear, in reaching this conclusion, counsel
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factored out those instances where, on her assessment, there was a causal link
between the grievor’s alcohol abuse and the workplace issues.
[65] Counsel reiterated that the grievor’s conduct exhibited all of the indicia of the
negative effects of alcoholism. She submitted that, as a consequence, the non-culpable
conduct should have been fairly addressed and not “disciplined away”. Counsel argued
that the Employer adopted the wrong approach when it elected to respond solely with
progressive discipline. From her perspective, the LCBO’s decision to terminate was
unreasonable as it focused on punishment and treated the grievor’s condition as being
entirely culpable.
[66] Counsel referenced Ms. Peirce’s evidence with respect to the following: the
costs flowing from employee absences and lateness; the negative impact these have on
store operations, employee morale and customer service; and the potential for theft,
security and safety issues. She emphasized that Ms. Peirce’s evidence was largely
speculative in nature, as it addressed what could happen versus what, in fact, occurred.
Counsel noted that there is a lack of any concrete evidence to establish that the LCBO’s
operations were adversely affected by the grievor’s conduct. As a consequence, this
Vice-Chair was asked to give little weight to the Employer’s evidence on this aspect of
the case. Counsel asserted that, in the circumstances, there would be no undue
hardship experienced by the Employer if the grievor was reinstated to her former
position.
[67] Counsel for the Union next argued that a number of other mitigating factors
support a reinstatement, including the following:
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i) The grievor experienced domestic abuse from her
husband for approximately twenty (20) years. Such
abuse had both a physical and emotional
component. Counsel observed that this treatment
led the grievor to turn to alcohol on her “bad days”.
She acknowledged that the grievor continued to be
affected by the history of abuse even after she
separated from her husband in December, 2010.
Counsel noted, however, that with the passage of
time, the grievor’s life has changed for the better.
She referenced the grievor’s evidence that she now
has fewer bad days and has developed a solid
relationship with her daughters and grandchildren;
ii) The grievor’s seven (7) years of seniority, while not
extremely lengthy, should stand to her credit and
should not be discounted;
iii) The grievor, given her age, will likely have a difficult
time securing alternate employment, especially with
her low and stale skill set. Counsel suggested that
the grievor’s prospects of re-employment, especially
in a small community such as Acton, are limited at
best; and
iv) The economic impact on the grievor arising from her
termination has been significant. Counsel noted that
the grievor is now in receipt of assistance through
the Ontario Works Program and that she also relies
on friends and family for further financial support.
[68] Counsel for the Union observed that alcohol dependency is a treatable illness
and one that requires effort and commitment. She referenced the support which the
grievor received through her involvement with the Church and the positive impact it has
had. Counsel acknowledged that the grievor has not received formal medical treatment
for alcoholism and that she decided against participating in Alcoholics Anonymous. She
cautioned, however, that the path the grievor took to promote her recovery should not
be minimized. Counsel advised that the grievor is not opposed to a more formal
treatment program for alcohol addiction and noted that she remains on a waiting list to
see Dr. Alexander. She stressed that the grievor no longer wants to drink and does not
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need alcohol to give her strength. She attributed this, in large part, to the fact the
grievor’s husband, who was previously the source of her stress, is no longer involved in
her life. In summary, counsel submitted that, if reinstated, the grievor would be able to
conform to the Employer’s expectations and could become a productive employee
going forward.
[69] As mentioned, counsel for the Union acknowledged that a suspension, and even
a lengthy one, might be merited as a disciplinary response to the grievor’s culpable
conduct. She suggested, however, that a time-served suspension for the non-culpable
conduct might be considered as excessive. In any event, counsel argued that a
conditional reinstatement should be ordered to creatively and effectively address any
continuing issues with alcohol abuse if this Vice-Chair were to find either of the
following: the grievor’s efforts surrounding treatment have been insufficient to date;
there is a demonstrable need for medical evidence with respect to treatment, prognosis
or required accommodation. Counsel suggested that such a reinstatement could include
terms requiring the grievor to obtain an appropriate medical assessment; complete a
more traditional treatment program; attend and continue to attend meetings of
Alcoholics Anonymous or of some similar program; complete counselling or treatment
with respect to any residual effects of the prior domestic abuse; and to abstain from the
use of alcohol. She further stated that this form of reinstatement could set out the effect
any breach of the conditions imposed would have on the grievor’s continued
employment. In counsel’s judgment, such a resolution would not amount to a last
chance agreement. Rather, it would be the chance she was promised in August, 2011.
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[70] In reply, counsel for the Employer argued that the combination of Dr. Nemeth’s
report, the grievor’s history of alcohol related incidents in the workplace, and the
Employer’s suspicions that the grievor had an alcohol abuse issue do not establish that
the grievor, in fact, had a disability. She advanced the following arguments in support of
this position:
i) Dr. Nemeth was not the grievor’s treating physician.
Her report, in large part, was based on the grievor’s
self reporting. Dr. Nemeth did not engage in a direct
examination or assessment of the grievor’s
alcoholism, given that the latter told her she was not
consuming alcohol and had not done so for quite
some time. Counsel emphasized that Dr. Nemeth
did not make a finding that the grievor was an
alcoholic or had a disability. Rather, her report
simply stated that the grievor had a history of alcohol
dependence. In counsel’s view, having a drink on a
bad day does not equate with an addiction;
ii) Apart from the incident in 2006, the grievor was not
consuming alcohol at work. Counsel argued that the
fact the grievor on occasion reported to work under
the influence does not by itself mean that she is an
alcoholic. It was her submission that more evidence
is required to establish the existence of a medical
disability. She observed that there is no evidence to
show that the grievor lacked control over her
drinking; and
iii) A finding of disability must be made from the facts,
not on the basis of suspicions. Counsel suggested
that the grievor’s repeated denials may simply have
been a reflection of the truth. She stressed that the
grievor never testified that her denials, as
documented in the many letters sent to her by the
LCBO, were incorrect. Counsel argued that this
Vice-Chair must base a finding of disability on the
available facts and not on an unconfirmed suspicion.
[71] Counsel noted that Ms. Peirce did not say her approach would have changed if
the grievor had been specifically diagnosed as having a disability. She argued that
such a diagnosis would only have had significance from a legal perspective. First, it
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would trigger the duty to accommodate under the Human Rights Code and, second, if
the disability was out of control and caused the misconduct, the conduct could not be
considered as culpable and subject to discipline.
[72] Counsel suggested that the Union, in effect, advanced a duty to accommodate
argument with respect to much of the period of the grievor’s employment, and that it
was not limited to the specific period around the time of the grievor’s termination. It was
her submission that this amounts to an improper expansion of the grievance. She
emphasized that the grievance of September 22, 2011 does not on its face raise issues
relating to human rights, the duty to accommodate, or harassment and discrimination.
Counsel asserted that the issue in this case is not whether the LCBO accommodated
the grievor to the point of undue hardship. Rather, it is whether there was just cause to
terminate and, if so, whether the grievor’s use of alcohol, or other mitigating factors,
warrant the substitution of some lesser penalty. In counsel’s view, the Employer did
everything it could possibly have done to assist the grievor to change her conduct, all to
no avail. She submitted that, as a consequence, the employment relationship was no
longer viable at the point of termination.
[73] Counsel maintained that the Employer did confront the grievor about her
suspected alcohol abuse on numerous occasions and that it, accordingly, satisfied its
duty to inquire about the grievor’s condition. From her perspective, LCBO management
repeatedly brought the issue of suspected alcohol abuse to the grievor’s attention and
continually reminded her of the Employer’s willingness to accommodate and about the
availability of the EAP. She maintained that the Employer did not ignore the issue, as
alleged, notwithstanding all of the grievor’s denials. Counsel also referenced the
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Union’s argument that the Employer, prior to termination, should have forced the grievor
to get more medical evidence surrounding her condition or to undergo an independent
medical examination. In response, she asserted that it was not the Employer’s role to
“force the grievor out of denial and into treatment”. Instead, pursuant to the duty to
accommodate, the Employer has a duty to inquire and to provide a suitable
accommodation. Counsel emphasized that it was the grievor’s obligation to accept and
facilitate any offer of accommodation. She further noted that the LCBO arranged for an
independent medical exam in 2007 following the earlier incident. In counsel’s words,
that initiative “didn’t work”.
[74] Counsel for the Employer observed that the Union was present at all of the
meetings where the Employer raised the issue of suspected alcohol abuse and offered
to accommodate. A Union representative was also in attendance at the meeting of
August 4, 2011 at which the grievor first acknowledged the fact that she might have
started to have a problem with alcohol. It was counsel’s submission, in effect, that the
outcome would not have been different if the Union had been more actively involved.
She observed that after the August 4th meeting, the Employer kept imploring the grievor
to get treatment. When she failed to provide the requested information by August 31st, a
further meeting was scheduled for September 8, 2011. As mentioned, the grievor failed
to attend that meeting. Counsel asserted that the LCBO was “trying to work with the
grievor” but the latter was “not engaging in the process”. She stressed that the decision
to terminate was delayed until September 20, 2011. In her view, there is no evidence
that the grievor took any concrete action either before or after that date to secure help
for her issues. Counsel stressed that the grievor was not without available resources,
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as she could have contacted her family physician, the EAP, or the Union for any needed
direction and assistance.
[75] Counsel for the Employer submitted that it would be clearly inappropriate, and
beyond this Vice-Chair’s jurisdiction, to review the grievor’s prior disciplinary record to
determine what was or was not linked to the alleged disability. Put another way, she
argued that it would now be wrong to go back and find that some of the conduct was
non-culpable, such that progressive discipline ought not to have been applied. Counsel
observed that such an approach would require this Vice-Chair to make findings of fact
with respect to these prior matters and, ultimately, to determine whether the discipline
imposed at the time was reasonable. She stressed that none of the past discipline was
grieved and that the circumstances leading to such discipline are not captured by the
instant grievance. In the alternative, counsel maintained that the prior discipline was not
issued for non-culpable conduct. Rather, the discipline imposed was premised on the
culpable aspects of the grievor’s behavior. Counsel noted that the Union did not argue
that all of the absences or lates, the failure to provide advance notice of same, and the
failure to provide proper medical documentation were related to the grievor’s alcohol
abuse. She argued that, even if showing up for work under the influence is non-
culpable, which the Employer contests, there are a substantial number of misconducts
that are not linked to the alleged disability. In this regard, counsel stated that many of
the incidents which occurred in the July to September, 2011 period, which led to the
termination, have no nexus to alcohol addiction. In the final analysis, counsel asserted
the Union failed to satisfy the onus of establishing that the grievor’s behavior was not
culpable. She accused the Union of trying “to reverse this onus by turning the
Employer’s suspicions into the fact of a causal connection”.
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[76] Counsel for the Employer submitted that the issue of domestic abuse should not
be “parcelled out” of any assessment of the grievor’s behavior. She suggested that any
problems the grievor may have had with alcohol may have been driven by the domestic
abuse. From her perspective, the status of such abuse is uncertain as at the time of
termination. Counsel questioned whether it might have been continuing around that
time, given the nature of the grievor’s absences over the period August 10 to August 20,
2011. She further observed that the psychiatric issues arising from the domestic abuse
have not been fully addressed and resolved to date.
[77] Lastly, counsel for the Employer submitted that a conditional reinstatement
should not be ordered here. She referenced the following in support of this submission:
the grievor’s extensive record of discipline; the lack of a clear connection between much
of the grievor’s misconduct and alcohol addiction; the grievor’s failure to obtain
treatment following her termination; the absence of any supporting medical evidence
pointing to a positive prognosis and rehabilitation; and all of the Employer’s efforts to
assist the grievor prior to her discharge. In view of these factors, counsel suggested
that any reinstatement of the grievor to her former position at the LCBO would merely
be setting her up for failure.
[78] No medical evidence was filed in this proceeding to establish that the grievor had
an addiction to alcohol, or that she was unable to control her consumption of alcohol,
during the period material to this dispute. Similarly, no medical evidence was presented
to show that the grievor’s past history of domestic abuse affected her mental state and
whether it was a contributing factor to some, or all, of the incidents set out in the Agreed
Statement Of Facts, and more particularly those which occurred between July and
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September, 2011. The need for objective medical evidence to establish an addiction or
other disability is referenced in Accuride Canada Inc. and CAW-Canada, Local 27
(Bishop Grievance) and Ontario Public Service Employees Union and Liquor Control
Board of Ontario (Carmichael Grievance). The complete lack of such evidence here
makes it virtually impossible for this Vice-Chair to determine if the grievor suffered from
a disability or disabilities captured by the provisions of the Human Rights Code, thereby
requiring the Employer to accommodate same to the point of undue hardship.
Additionally, it makes it difficult to establish the necessary nexus or connection between
the grievor’s condition/s and her work-related behavior.
[79] As a result of the absence of medical evidence, this Vice-Chair cannot state, with
the requisite degree of confidence, that the grievor was, in fact, an alcoholic over the
relevant period. I have little doubt, however, based on all of the circumstances that she
had an alcohol abuse problem. Her record is consistent with what one might expect of
an employee experiencing this issue. Clearly, the Employer over a lengthy period
suspected that the grievor abused alcohol. This suspicion is documented in numerous
letters it sent to the grievor. Indeed, on multiple occasions, the Employer to its credit
offered to accommodate the grievor if she would acknowledge a problem with alcohol
abuse and agree to participate in treatment.
[80] The Employer did attempt to address the grievor’s issues. Its efforts with respect
to the suspected alcohol abuse included the following:
i) In its letters to the grievor of January 21, 2010,
February 25, 2011 and June 13, 2011, the
Employer advised her that, if she admitted to an
alcohol abuse problem, it would accommodate her
and assist with the facilitation of related treatment.
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The grievor was also reminded therein about the
availability of the EAP;
ii) The grievor was absent from work between June 13
and June 16, 2011. As noted in paragraph #33 of
the Agreed Statement Of Facts, she alleged that
this absence was due to her being raped by a
stranger in an alley. While the Employer did not
believe this explanation, it elected to not impose
any discipline relating to this period of absence.
Instead, it implored the grievor to seek professional
help in dealing with her issues; and
iii) Following the grievor’s acknowledgement at the
meeting of August 4, 2011 that she might have
started to have an alcohol abuse problem, Ms.
Peirce wrote to the grievor by letter of August 8,
2011 and advised that the LCBO was prepared to
accommodate her and to facilitate attendance at a
suitable alcohol addiction treatment program. Ms.
Peirce requested that the grievor provide the
necessary information about such program by
August 31, 2011. At that same time, the grievor
was informed that the Employer would defer to that
later date any decision on whether to impose
discipline for the incidents which occurred between
July 14 and August 3, 2011. Discipline for further
work-related misconduct was also deferred to
August 31st by way of Ms. Peirce’s subsequent
letter of August 12, 2011.
[81] It is apparent on the evidence that, until August 4, 2011, the grievor repeatedly
denied having an alcohol abuse problem. Additionally, prior to that date, she did not
request any accommodation with respect to same. I reject the suggestion that the
Employer ignored the issue and failed to make sufficient inquiry about what was causing
the grievor’s work related problems. Rather, I am satisfied that it confronted the grievor
on numerous occasions over a lengthy period about her suspected alcohol abuse. For
reasons which are not entirely clear, the grievor consistently denied that she had a
problem. These denials effectively limited the Employer’s ability to respond to the
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situation. On my analysis, the grievor was not then prepared to address the condition/s
which impaired her work performance.
[82] As noted, the grievor failed to take any steps to enrol in a suitable alcohol
addiction treatment program by August 31, 2011. I have not been persuaded that the
grievor was left entirely on her own to make the necessary arrangements. From her
evidence, it seems that it was the Employer who recommended a residential program of
one (1) month’s duration in Guelph, Ontario. There is no indication that the grievor
asked the Employer for any further assistance or that she experienced problems in
communicating with the identified program. Rather, the grievor simply advised that she
could not attend the residential facility because there was no one else to take care of
her five (5) pets. I note that this reason for non-attendance was not offered to Ms.
Peirce at the time. In cross-examination, the grievor initially stated that she did not
inquire about the availability of a non-residential treatment program. She later
maintained that she did ask a physician about other options, but could not recall who
she spoke to or what information she may have received. In the final analysis, I think it
likely that the grievor would have made the necessary arrangements for the care of her
pets, if she was truly interested in securing the required treatment and returning to her
position at the LCBO.
[83] This Vice-Chair is also satisfied that the Employer took steps to address the
domestic abuse experienced by the grievor. Its efforts included the following:
i) The Employer facilitated an independent medical
assessment and paid for individual counselling
sessions in 2007 and 2008, as described between
paragraphs #8 and #14 of the Agreed Statement Of
Facts;
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ii) By letter of June 12, 2008, the Employer strongly
encouraged the grievor to contact her counsellor at
her treatment program and offered her flexibility in
her scheduling at work while she addressed the
problem;
iii) On April 9, 2009, Mr. Wilkinson and Ms. McIntyre
met with the grievor about the domestic abuse she
experienced on March 21, 2009. They reminded her
about the availability of the EAP and encouraged her
to contact her family physician for assistance and for
a referral to appropriate services. The grievor was
again offered flexibility with respect to her schedule.
This communication is documented in Mr.
Wilkinson’s letter of April 17, 2009;
iv) Mr. Wilkinson again addressed the issue of spousal
abuse in his letter to the grievor of January 21, 2010.
The concluding sentences of the letter read:
“…The LCBO remains extremely concerned
regarding your domestic situation and recurring
incidents of spousal abuse and strongly encourages
you to seek assistance in dealing with your situation
by contacting your family physician or the LCBO’s
Employee Assistance Program for referral to
appropriate services. The LCBO is prepared to
assist you as far as is possible, but only you can
take the steps necessary to deal with your domestic
situation”.
v) Ms. Peirce in her letter of February 25, 2011, which
followed the domestic abuse incident of December
29, 2010, advised the grievor that the LCBO was
prepared to transfer her to another store and to
develop a response plan should her husband attend
at the store.
On the evidence presented, it is clear that the grievor never responded to the
Employer’s offers by requesting a transfer or asking for any other accommodation
relating to her domestic situation. As was the case with respect to alcohol abuse, I find
that, at least up until the end of December, 2010, the grievor failed to take the steps
necessary to address this issue.
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[84] Given all the circumstances of this case, including the lack of any medical
evidence; the grievor’s repeated denials that she had an alcohol abuse problem; her
failure to respond to the LCBO’s offers of assistance with respect to domestic abuse;
and all of the Employer’s efforts to address the grievor’s issues, I accept the Employer’s
submission that the threshold issue here is not whether it accommodated the grievor to
the point of undue hardship. Rather, it is whether there was just cause for termination
and whether the grievor’s use of alcohol, her domestic abuse and other mitigating
factors warrant the substitution of some lesser penalty. In this regard, I choose to adopt
the approach taken in Uniroyal Goodrich Canada Inc. and United Steelworkers of
America, Local 677 (N.S. Grievance) and Ontario Public Service Employees Union and
Liquor Control Board of Ontario (Carmichael Grievance). The pertinent passages from
these awards are found at paragraphs #46 and #52 of this Decision. The former award,
as noted, states:
“………………………………………While the discharge
letter itself indicates that the termination was “for
cause”, and while concepts of “blameworthiness” are
too easily attached to a situation where a person
reports for work drunk, it is more appropriate to view
this case as essentially one concerning termination.
For a grievor suffering from alcohol dependence, as in
cases of innocent absenteeism, the question is not
whether punishment is appropriate. The question is
whether the grievor’s past record establishes an
unacceptable level of performance and whether the
future prognosis is one that can anticipate a viable
employer/employee relationship. Therefore, the
approach should not be to look for fault or blame in the
case of an alcoholic, but to focus on whether the
legitimate contractual expectations of the employer can
be achieved.”
[85] In the period July 15, 2009 to June 13, 2011, the grievor received the following
discipline: three (3) letters of reprimand, a one (1) day suspension, a two (2) day
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suspension, three (3) three (3) day suspensions and a five (5) day suspension. This
translates into nine (9) instances of discipline in a period of slightly less than two (2)
years. Two (2) of the disciplinary sanctions, namely the ones imposed on January 21,
2010 and February 25, 2011, resulted from the grievor’s attendance at work under the
influence of alcohol and unfit for duty. The balance related to instances where she
failed to report for work without providing advance notice, reported to work late without
prior notice and failed to supply appropriate medical documentation as required. It is
significant that none of the above discipline was grieved at the time. The sequencing
and level of the discipline would also seem to accord with the concept of progressive
discipline, as generally understood.
[86] This Vice-Chair has not been persuaded that it would be appropriate to go
behind the above-referenced discipline in an effort to differentiate between culpable and
non-culpable conduct. I consider that it would be improper to reassess the
circumstances of all of the prior incidents resulting in discipline and to now find that
discipline should not have been levied for conduct found to be non-culpable. In such a
process, I would necessarily be required to make findings of fact and to potentially
determine that certain discipline previously imposed was not appropriate. In my
judgment, it is too late to engage in this type of exercise, particularly as no grievances
were filed at the time. Obviously, the grievor could have challenged the discipline when
it was imposed, if she felt she was being improperly sanctioned for non-culpable
behavior. In this regard, the bulk of the discipline, as mentioned above, was not
imposed for what arguably might be considered as non-culpable conduct. Ultimately, I
conclude that it would be wrong to now engage in a reconfiguration of the grievor’s
disciplinary record. That record, as described between paragraphs #23 and #31 of the
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Agreed Statement Of Facts, must be accepted for purposes of assessing the
reasonableness of any subsequent discipline.
[87] Notwithstanding the fact the grievor was warned that her misconduct would no
longer be tolerated and that her continued employment with the LCBO was at real risk,
she continued to engage in similar behavior over the period from July 14, 2011 to the
date of her termination. The grievor’s record within this timeframe is as follows: on four
(4) occasions, she reported to work under the influence of alcohol and unfit for duty
(July 15, July 29, August 2 and August 9, 2011); she failed to provide notification of an
absence or late on six (6) occasions (July 14, August 6, August 7, August 10,
September 6 and September 8, 2011); and she failed to provide the required medical
documentation on three (3) occasions (August 3, August 20 and September 9, 2011).
To reiterate, all of this occurred within a period of approximately two (2) months.
[88] As mentioned previously, the Employer deferred imposing discipline with respect
to the above incidents pending receipt of information relating to the grievor’s enrolment
in a suitable alcohol addiction treatment program. When that information was not
forthcoming by August 31, 2011, and the grievor failed to attend the meeting scheduled
for September 8, 2011, the Employer was, in my judgment, clearly entitled to impose
further discipline. I am satisfied that, at that juncture, there was just cause for
termination. This Vice-Chair has considered the following, inter-alia, in reaching this
conclusion:
i) The grievor’s record of attendance in the three (3)
year period preceding her termination, as described
in paragraph #8 of this Decision, reflects a pattern
of excessive absenteeism;
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ii) A number of negative consequences may result
when an employee reports to work under the
influence of alcohol and unfit for duty including:
their safety and that of other employees may be
jeopardized; their ability to apply the Challenge and
Refusal policy may be impaired; the level of
customer service may be diminished; and the
reputation of the LCBO in the community may be
undermined. The grievor, on those occasions she
attended work under the influence, seemed
oblivious to these risks. She clearly should have
known that she was engaging in serious
misconduct, given that discipline had previously
been imposed for the same infraction. Her actions
also constituted a breach of the LCBO’s Social
Responsibility At Work policy. Pursuant to this
policy, an employee is subject to discipline, up to
and including termination, for reporting to work
under the influence of alcohol;
iii) Failure to comply with the Employer’s call-in
procedure with respect to absences and lates can
have an adverse effect on the store’s operations. I
accept Ms. Peirce’s evidence on this point. While
some of these effects may not have occurred here,
the District Manager’s testimony speaks to the
importance of providing advance notice given the
potential for significant disruption of the store’s
operations;
iv) The Employer has a right to expect employees to
attend at work absent a legitimate excuse. Failure
to provide advance notification provides a separate
cause for discipline even if the absence or late is for
legitimate reasons. The grievor had previously
been disciplined for failing to provide such notice
and was certainly aware that failure to meet this
expectation could result in discipline. I accept that
the grievor failed to establish there was a valid
reason for her numerous failures to provide the
advance notification in question;
v) Given the grievor’s poor attendance record over a
considerable period of time, it was reasonable for
the Employer to require her to provide medical
documentation dated the day of the absence, rather
than after the fact. Failure to comply with this
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requirement could properly subject the grievor to
discipline; and
vi) In view of the grievor’s lengthy disciplinary record
and her continued misconduct following the
meeting of August 4, 2011; the grievor’s failure to
supply the information sought by Ms. Peirce by
August 31, 2011; and her failure to attend the
meeting scheduled for September 8, 2011, I find
that Ms. Peirce could fairly conclude that the grievor
was not going to change her ways and correct her
behavior, despite the many opportunities extended
to her to do so. Additionally, I accept that there was
a solid basis for Ms. Peirce’s assessment that the
employment relationship was no longer viable. I
further accept the submission of counsel for the
Employer to the effect that, at the time of
termination, there was no indication that some
lesser sanction would result in a change in behavior
on the part of the grievor.
[89] It is apparent from the evidence that the grievor did not receive any professional
treatment for alcohol abuse between the date of her termination and the last day of her
testimony in December, 2015. This Vice-Chair was not told that she had started
treatment as of the last day of argument in October, 2016. This encompasses a period
in excess of five (5) years. It is also material that no medical reports were filed in this
proceeding relating to the grievor’s condition in the post discharge period. I am satisfied
that if the grievor was serious about seeking reinstatement to her former CSR position,
then she should have sought help from an appropriate medical practitioner or treatment
facility. This is particularly so given that alcohol dependency is generally considered to
be treatable.
[90] As mentioned above, the grievor did not contact the EAP following her
termination to determine what resources were available to assist her with the alcohol
abuse issue. Pursuant to the letter of termination, she was entitled to resort to the
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program, at no cost, for a period of six (6) months. The grievor did not provide any real
explanation as to why she chose not to pursue this option. Additionally, she made only
one (1) telephone inquiry about the program offered through Alcoholics Anonymous.
She elected, for the reason stated earlier, against participating in their program.
Instead, the grievor testified that she turned to the Church for assistance. It was her
evidence that she attended a weekly Christian Education program and participated in
the activities of a Food Bank operated by the Church. While these involvements may
have provided support to the grievor, I have not been persuaded that they supplanted
the need to get professional help for her problems, particularly that relating to alcohol
abuse.
[91] On balance, this Vice-Chair is simply asked to accept the grievor’s assertion that
she no longer abuses alcohol. Given all of the circumstances existing in this case, I am
not prepared to do so in the absence of related medical or professional evidence.
There is no reason to conclude, or be confident, that the grievor will not resume abusing
alcohol as she did after seeing Dr. Nemeth in 2007.
[92] It is similarly clear that the grievor failed to obtain any treatment for the
psychological issues, and possible symptoms of post traumatic stress disorder,
stemming from her long history of spousal abuse. Simply put, there is no reliable
evidence as to her current mental state and prognosis moving forward. I note that the
grievor maintained that her psychological issues materially subsided following the
marital separation in late December, 2010. That claim is hard to reconcile with her
record of discipline and misconduct in 2011.
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[93] This Vice-Chair finds it difficult to understand why the grievor would overlook her
appointment with Dr. Mulder in March, 2012 if she was, in fact, interested in receiving
treatment for the continuing effects of domestic abuse. The grievor testified that she
could not recall if she asked for the appointment to be rescheduled. I think it likely that
she would have remembered doing so if she actually made such a request. The
subsequent referral to Dr. Alexander suggests that she did not do so. To date, the
grievor has still not seen Dr. Alexander and remains on the latter’s waiting list for an
appointment. Given that the grievor was terminated in September, 2011, I would have
expected her to take the necessary steps to secure other treatment in a much more
timely fashion.
[94] An onus exists for the grievor to show that she has rehabilitated herself and has
a good prognosis if returned to the workplace. This onus has not been satisfied here.
There is no firm evidence that the grievor’s alcohol abuse has ended or that her
psychological issues have been resolved, or at least brought to a manageable level. In
the absence of such evidence, I am unable to find that a viable employer-employee
relationship can be re-established. Ultimately, this Vice-Chair has not been persuaded
that the grievor, if reinstated, would be able to conform to the expected standards of
behavior and that she could become a productive employee going forward. To repeat,
this conclusion is consistent with the approach taken in Uniroyal Goodrich Canada Inc.
and United Steelworkers of America, Local 677 (N.S. Grievance) and Ontario Public
Service Employees Union and Liquor Control Board of Ontario (Carmichael Grievance).
[95] I note the following with respect to certain of the evidence presented by the
grievor:
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i) On many occasions, her evidence was inconsistent,
extremely vague and confusing. In several
instances, she was unable to clearly explain why
she had acted in a particular way, other than to
state that her mind was not working at the time and
she was then a different person;
ii) The grievor denied that she reported for her shift on
July 15, 2011 under the influence of alcohol and
unfit for duty. This denial is at odds with the
evidence set out at paragraph #22 of this Decision;
iii) The grievor also provided inconsistent evidence as
to whether Dr. Jayalath made any
recommendations for treatment. At one point in her
evidence, she testified that Dr. Jayalath did not do
so. This statement is clearly inconsistent with a
Patient Referral form emanating from this
physician’s office. The form indicates that the
referrals to both Dr. Mulder and Dr. Alexander were
initiated from Dr. Jayalath’s office;
iv) It is reasonable to question the accuracy of the
grievor’s assertion that her husband was out of her
life as of December, 2010. I note, in this regard,
that the injury the grievor sustained in August, 2011
is similar to the injuries she earlier received at the
hands of her husband; and
v) Lastly, given both the nature of alcohol abuse and
the grievor’s history, I find it hard to accept that she
stopped drinking “cold turkey” and did so without
any difficulty.
In summary, I am left with the distinct impression that much of the grievor’s evidence is
unreliable. In my judgment, this negatively impacts the question of rehabilitative
potential and the prognosis going forward.
[96] While this is truly a sad case given the grievor’s circumstances, this Vice-Chair
concludes that it would not be appropriate to provide her with a “last chance” through
the vehicle of a conditional reinstatement, as requested by the Union. The grievor, over
the course of a considerable period, has been accorded numerous opportunities to
confront and address her issues. It is a fair assessment to say that little progress was
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achieved, particularly with respect to the grievor’s use of alcohol. This Vice-Chair might
have been more inclined to look favourably on this option, if there had been a record of
treatment subsequent to the grievor’s termination and evidence of a positive prognosis
as a consequence of same. In the absence of this type of information, there is no solid
assurance that the grievor’s behavior will not continue as before. In considering the
Union’s remedial request, I have also taken into account the length of the grievor’s
seniority, the economic hardship arising from the termination and the grievor’s inability
to date to find other employment. These factors are an insufficient foundation for the
exercise of discretion in the grievor’s favour.
[97] On the first day of argument, which was the fourth hearing date in this matter,
counsel for the Employer brought a motion to dismiss the grievance on the basis that
the grievor had failed to satisfy the conditions agreed to with respect to the adjournment
of the hearing on February 17, 2016. Late in the day on February 16, 2016, counsel for
the Union contacted opposing counsel to request an adjournment of the next day’s
hearing. The stated reason for the request was that the grievor had a medical issue
which required her attendance at the hospital on February 17th. After the exchange of
emails between counsel, it was agreed that the proceeding on February 17th would be
adjourned on the following conditions: the grievor would provide detailed medical
documentation confirming the reason for her inability to attend on the hearing date; and
the grievor would provide confirmation that she was seen at the hospital on February
17th. The Employer also reserved its right to request that the grievance be dismissed
because of the grievor’s failure to attend.
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[98] Counsel for the Employer received the medical documentation requested on
June 22, 2016, which was the next scheduled hearing date. More specifically, the
Union provided a medical note from Georgetown Hospital dated February 16, 2016. It
stated that the grievor had been seen in the Emergency Room that day and might “need
rescheduling/time off until improving”. Counsel for the Employer argued that this note
was insufficient, as it did not establish that the grievor was unable to attend the
February 17th hearing. Counsel for the Union acknowledged that the note was not
consistent with the conditions agreed to. It was the position of the Employer that, as a
consequence, the grievance should be dismissed. Following argument on the motion,
both counsel presented their respective submissions on the merits of the dispute. This
occupied the better part of three (3) days.
[99] Given the disposition on the merits, it is unnecessary to address the Employer’s
motion to dismiss. I would not, however, have been inclined to grant same for the
following reasons:
i) While this Vice-Chair had granted a prior
adjournment with respect to the September 16,
2015 hearing date, that adjournment was given so
as to ensure that Union counsel had a fair and
adequate opportunity to prepare her case;
ii) The present case is distinguishable from many of
the authorities relied on by the Employer. It is not a
situation where the grievor failed to attend one (1)
or more hearing dates without any advance notice.
In both instances here, there was some advance
notice of the request for an adjournment, albeit
short. On the facts before me, it would not be
possible to find that the grievor was abandoning her
grievance. This is not a situation where the grievor
had ceased communications with the Union or
failed to cooperate with counsel in the preparation
or presentation of the case. I am also unable to
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find that what occurred her was tantamount to an
abuse of the Grievance Settlement Board’s
process;
iii) While the medical note provided by the grievor is
vague and does not satisfy the conditions agreed
to, it does appear that the grievor was experiencing
medical issues on the day prior to the hearing. A
fair reading of the note suggests that the doctor
who completed it contemplated that the grievor
might require additional time for improvement; and
iv) The motion here was heard after all of the evidence
was completed. As noted, the parties were content
that consideration of same be deferred until after
the conclusion of the entire case.
In my judgment, the more appropriate response would have been to order that no
liability attach to the Employer with respect to the period of time between February 17,
2016 and the next hearing date of June 22, 2016.
[100] For all of the above reasons, the termination is upheld and the grievance is
dismissed.
Dated at Toronto, Ontario this 21st day of March 2017.
Michael V. Watters, Vice-Chair
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APPENDIX OF AUTHORITIES
AUTHORITES RELIED ON BY THE EMPLOYER:
-Abbott Laboratories Ltd. and Retail Wholesale Canada, Div. of C.A.W., Loc. 462
(Wright) (Re) (2001), 98 L.A.C. (4th) 302 (Thorne) (Ontario)
-Hendrickson Spring v. United Steelworkers of America, Local 8773 (J.S. Grievance),
[2005] O.L.A.A. No. 433 (Haefling) (Ontario)
-Re Gates Rubber of Canada Ltd. and United Rubber Workers, Local 733 (1978),
20 L.A.C. (2d) 229 (Kennedy), rev-d [1980] O.J. No. 25 (Ont. H.C.J.)
-Saskatchewan Assn. of Health Organizations v. Canadian Union of Public Employees,
Local 4777 (Moody Grievance) (2013), 230 L.A.C. (4th) 372 (Hood) (Saskatchewan)
-Re Brampton (City) and C.U.P.E., Loc. 831, Re (1991), 18 L.A.C. (4th)1(Foisy)(Ontario)
-United Automobile Workers, Local 195 and American Standard Products (Canada) Ltd.
(1963), 14 L.A.C. 295 (Little)
-Re Valley Rite-Mix Ltd. and Teamsters Union, Local 213 (1974), 6 L.A.C. (2d) 339
(Ladner), rev’d (1975), 7 L.A.C. (2d) 202
-Canada West Foods (B.C.) Corp. and United Food & Commercial Workers Union,
Local 2000 (Dedels Grievance), [1999] B.C.C.A.A.A. No. 74 (Bluman) (BC)
-Dashwood Industries Ltd. and C.J.A., Loc. 3054 (Innes)(Re)(1998), 73 L.A.C. (4th)
395 (Rose) (Ontario)
-Toronto (City) v. Toronto Civic Employees Union, Local 416 (Balchand Grievance),
[2015] O.L.A.A. No. 337 (Stout) (Ontario)
-Re Ford Motor Co. of Canada Ltd. and U.A.W., Local 1520 (1975), 8 L.A.C. (2d) 149
(Palmer) (Ontario)
-Fishery Products (Marystown) Ltd. and Newfoundland Fisherman, Food & Allied
Workers, Local 1245 (1979), 22 L.A.C. (2d) 439 (Hattenhauer) (Nfld)
-Smurfit-MBI v. Independent Paperworkers of Canada, Local 69 (Gaines
Grievance), [2003] O.L.A.A No. 693 (Haefling) (Ontario)
-Bullmoose Operating Corp. v. Communications, Energy & Paperworkers
Union, Local 443 (Tolmie Grievance), [2001] B.C.C.A.A.A. No. 32 (Devine) (BC)
- 82 -
-Re Canada Post Corporation and C.U.P.W. (Gerlach) (1987), 30 L.A.C. (3d) 291
(Picher) (Canada)
-Re Bosal Canada Inc. v. National Automobile, Aerospace, Transportation and General
Workers Union of Canada (CAW -Canada) Local 1837 (Storey Grievance) (2005), 136
L.A.C. (4th) 437 (Picher) (Ontario)
-Re Canada Post Corp. and C.U.P.W. (Venosa) (1990), 15 L.A.C. (4th) 418 (Adell)
-Ontario Store Fixtures and C.J.A., Loc. 1072 (Phinn), Re (1993), 35 L.A.C.(4th) 187
(MacDowell) (Ontario)
-United Food and Commercial Workers, Local 175 v. Better Beef Ltd. (Cox Grievance),
[2007] O.L.A.A. No. 388 (MacDowell) (Ontario)
-Weyerhaueser Co. (Drayton Valley Operations) v. United Steelworkers Local1-207
(Greaves Grievance) (2007), 159 L.A.C. (4th) 56 (Power) (Alberta)
-Accuride Canada Inc. v. National Automobile, Aerospace, Transportation and
General Workers Union of Canada (CAW-Canada), Local 27 (Bishop Grievance),
[2006] O.L.A.A. No. 569 (Hinnegan) (Ontario)
-Ontario Liquor Boards Employees’ Union v. Ontario (Liquor Control Board of Ontario)
(Devlin Grievance) (2004), 128 L.A.C. (4th) 129 (Watters) (Ontario)
-Cami Automotive Inc. and Canadian Auto Workers, Local 88 (J.M. Grievance) (1994),
45 L.A.C. (4th) 71 (Brandt) (Ontario)
-Re Bosal Canada Inc. and Canadian Auto Workers, Local 1837 (2004), 129 L.A.C. (4th)
446 (Hinnegan) (Ontario)
-Miracle Food Mart of Canada and U.F.C.W., Locals 175 & 633, Re (1995), 48 L.A.C.
(4th) 87 (Newman) (Ontario)
-Dominion Castings Ltd. v. United Steelworkers of America, Local 9392 (Krasic
Grievance), [1999] O.L.A.A. No. 955 (Hinnegan) (Ontario)
-Re Air Canada and Canadian Union of Public Employees (Airline Division)
(Young Grievance), [2001] C.L.A.D. No. 472 (Munroe)
-Sifto Canada Corp. v. Communications, Energy and Paperworkers Union (Morden
Grievance), [2007] O.L.A.A. No. 174 (Roberts) (Ontario)
-Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970
-Uniroyal Goodrich Canada Inc. and United Steelworkers of America, Local 677
(N.S. Grievance) (1999), 79 L.A.C. (4th) 129 (Knopf) (Ontario)
- 83 -
-New Flyer Industries Ltd. v. National Automobile, Aerospace, Transportation and
General Workers Union of Canada (CAW-Canada), Local 3003 (Salvador Grievance)
(2010), 203 L.A.C. (4th) 129 (Peltz) (Manitoba)
-Ontario Public Service Employees Union v. Ontario (Liquor Control Board of Ontario)
(Carmichael Grievance), [2010] O.G.S.B.A. No. 264 (Johnston) (Ont.GSB)
-Burns Meat (Re) (1996), 55 L.A.C. (4th) 159 (Teskey) (Manitoba)
-Grober Inc. v. United Food and Commercial Workers, Local 175 (Dwyer Grievance)
(2002), 109 L.A.C. (4th) 53 (Williamson) (Ontario)
-Re J.I. Case Co. and U.S.W.A., Local 2868, [1992] O.L.A.A. No. 640 (Levinson)
(Ontario)
-Ball Packaging Products Canada Inc. and United Food and Commercial Workers’
Union Local 175 (1989), 8 L.A.C. (4th) 315 (Clement) (Ontario)
-Re Raven Lumber Ltd. And International Woodworkers of America Local 1-363 (1986),
23 L.A.C. (3d) 357 (Munroe) (Quebec)
-Toronto District School Board and Canadian Union of Public Employees, Local 4400
(W. Grievance) (1999), 80 L.A.C. (4th) 168 (Knopf) (Ontario)
-Toronto District School Board and Canadian Union of Public Employees (G. Grievance)
(1999), 79 L.A.C. (4th) 365 (Knopf) (Ontario)
-Re Rolland Inc. and Canadian Paperworkers Union, Local 310 (1983), 12 L.A.C. (3d)
391 (MacDowell)
-Bentler Automotive Canada Corp. Brampton Plant v. Unifor, Local 1285 (Strachan
Grievance), [2014] O.L.A.A. No. 45 (Hinnegan) (Ontario)
-Voith Fabrics and U.N.I.T.E., Loc. 720T (Kamara) (Re)(2002), 110 L.A.C. (4th)
62 (Roberts) (Ontario)
-Re Great Atlantic & Pacific Company of Canada and Retail, Wholesale and
Department Store Union, Local 414 (1978), 19 L.A.C. (2d) 139 (Burkett) (Ontario)
-Ontario Public Service Employees Union v. Ontario (Ministry of Community
and Social Services) (Aboutaeib Grievance) (2011), 213 L.A.C. (4th) 336 (Johnston)
(Ont. GSB)
-Toronto (City) and Canadian Union of Public Employees, Local 79 (Kourtsidis
Grievance), [1999] O.L.A.A. No. 458 (Springate) (Ontario)
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-Labourers International Union of North America, Local 506 v. Canadian Waste
Services Inc. (Minto Grievance), [2006] O.L.A.A. No. 89 (MacDowell) (Ontario)
-Culinar Foods Inc. and American Federation of Grain Millers, Loc. 242, Re (1995),
48 L.A.C. (4th) 99 (Brandt) (Ontario)
-Re Bell Canada and Communications Union Canada (1979), 22 L.A.C. (2d) 6
(Kennedy) (Ontario)
-Foothills Provincial General Hospital and A.U.P.E., Loc. 055, Re (1992), 32 L.A.C. (4th)
95 (Randall) (Alberta)
-Maple Leaf Consumer Foods v. United Food and Commercial Workers’ Union,
Local 832 (2004), 134 L.A.C. (4th) 299 (Hamilton) (Manitoba)
-Ontario Public Service Employees Union (Tafesse) and Liquor Control Board of
Ontario, GSB No. 2005-1342 (Gray)
-Corporation of the City of Toronto and Canadian Union of Public Employees,
Local 79 (Warner Grievance) (1998), 73 L.A.C. (4th) 412 (Craven)
-Ontario Public Service Employees Union (Durnin) and Liquor Control Board of Ontario,
GSB No. 2005-3281 (Dissanayake)
-Ontario Public Service Employees Union (Karabegovic) and Liquor Control Board of
Ontario, GSB No. 2007-1436 (Kirkwood)
-Ontario Public Service Employees Union (Mance) and Ministry of Health and
Long-Term Care, GSB No. 2009-1107 (Herlich)
-Ontario Public Service Employees Union (Ellis) and Ministry of Finance,
GSB No. 1866-99 et al (Dissanayake)
-Ontario Public Service Employees Union (Savdie) and Ministry of Government
Services, GSB No. 2011-3785 (Harris)
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AUTHORITIES RELIED ON BY THE UNION:
-Wall v. The Lippé Group, 2008 HRTO 50 (Mullan)
-United Food and Commercial Workers International Union, Local 175
and Fearman’s Pork Inc. (2011), unreported (MacDowell)
-Kemess Mines Ltd. and International Union of Operating Engineers, Local 115
(2008), 264 D.L.R. (4th) 495 (B.C.C.A.)
-Brewers Distributor Ltd. and Brewery, Winery and Distillery Workers Union
Local 300 (1998), 76 L.A.C. (4th) 1 (Munroe)
-Clean Harbors Canada Inc. and Teamsters Local Union No. 419 (2013),
234 L.A.C. (4th) 115 (Knopf)
-Kemess Mines Ltd. and International Union of Operating Engineers, Local 115
(2005), 139 L.A.C. (4th) 305 (Munroe)
-York Region District School Board and Canadian Union of Public Employees,
Local 1196 (2004), 128 L.A.C. (4th) 317 (Craven)
-Uniroyal Goodrich Canada Inc. and United Steelworkers of America, Local
677 (1999), 79 L.A.C. (4th) 129 (Knopf)
-Complex Services Inc. and Ontario Public Service Employees Union, Local 278
(2012), unreported (Surdykowski)