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HomeMy WebLinkAbout1994-0285.MAYER.96_11_12 O/IITARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 285/94 OLBEU # OLB066/94 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Mayer) Grievor - and - The Crown in Right of ontario (Liquor Control Board of Ontario) Employer BEFORE R J Roberts Vice-Chairperson FOR THE J. Noble GRIEVOR Legal Counsel ontario Liquor Boards Employees' Union FOR THE J Baker EMPLOYER Counsel Hicks, Morley, Hamilton, stewart, Storie Barristers & Solicitors HEARING September 21, 1995 November 29, 1995 December 12, 1995 March 22, 1996 June 17, 1996 1 AWARD I. Introduction ThIS IS a dIscharge case On Apnl 7, 1994, the gnevor was dIscharged for bemg mtoxIcated on the Job The decIsIon of the employer to dIscharge the gnevor was made after revIewmg hIS prevIOUS record of dIscIplme for alcohol-related mIsconduct. On Apnl 10, 1994, the gnevor filed the gnevance leadmg to the present arbitratIOn. At the hearmg, It was submItted on behalf of the gnevor that he should be remstated to employment subJect to condItIOns because he had been successfully rehabIlItated for hIS alcoholIsm problem. For reasons WhICh follow the gnevance IS dIsmIssed. II. Factual Background Accordmg to the eVIdence, the gnevor was employed m the manual pallet loadmg umt of the employer's Durham warehouse ThIS was the area where cases of product were loaded onto SkIds pnor to gomg to the shIppmg department. The gnevor's Job was to remove cases from a conveyor belt and load them onto pallets, 5 cases hIgh. The pallet-loads of cases would then be tied up and sent down for shIpment. 2 The gnevors' foreperson, Mr Colhns RIchards, testified that on the mornmg of March 24, 1994, he notIced that the gnevor seemed to be takmg an exceSSIve number of tnps to the washroom. ThIs appeared to be unusual behavIOr When the frequency of tnps became about one every 15 mInutes that afternoon, he decIded to check on the gnevor As he stood on top of the manual pallet loadmg umt to watch the gnevor return to hIS work statIOn, he noticed that the gnevor was staggermg and takmg a lot of time to get to the stairs to the umt. Mr RIchards deCIded to meet the gnevor on the first landmg of the stairs. He asked the gnevor If he had a problem. The gnevor Said no The gnevor then asked Mr RIchards If he was trymg to accuse hIm of somethmg and noted that Mr RIchards was hIS "brother" ThIS was a reference to Mr RIchards' bemg a member of the bargammg umt and, m fact, a second VIce preSIdent of the umon. Mr RIchards rephed that he had an oblIgatIOn as a foreperson and that m the mterest of the safety of the gnevor and others, It was necessary for the gnevor to remam wIth hIm on the landmg of the stairs and not return to hIS work statIOn. He then asked hIS co-foreman, Mr Comeau, to call the receIvmg manager, Mr Greg De Luca, to meet hIm at the stairs. Mr De Luca came to the stairs a few mmutes later Mr De Luca testIfied that as he approached the gnevor and Mr RIchards, he notIced that the gnevor seemed to be unsteady on hIS feet. Mr RIchards was the first one down the staIrs to meet hIm. He told hIm that he was concerned that the gnevor's condItIon made hIm unfit to work m the umt The gnevor came down next, and as he dId so, he staggered. 3 Mr De Luca stood very close to the gnevor and asked hIm If he was feelmg alnght. When the gnevor replIed, hIS breath smelled of alcohol. He satd he was okay, but as he dId so, hIS speech was slurred. HIS eyes were glossy and hIS eyelIds were droopmg Mr De Luca then asked both the gnevor and Mr RIchards to meet hIm m the office besIde the order processmg manager's office, about one hundred and fifty feet from the staIrs. He stayed back to watch them as they walked toward the office. The gnevor staggered all the way Mr De Luca then went to get Mr Fred Kemp, a umon steward, to Jom the three of them m the office He told Mr Kemp that they had a problem wIth an employee and hIS presence was reqUIred. As the two of them approached the office, Mr De Luca saw Mr Harry Povorka, the actmg controls manager He asked Mr Porvorka to go mto the office and stnke up a conversatIOn WIth the gnevor to assess hIS condItIOn. He dId so As thIS was gomg on, Mr De Luca called the mamtenance foreperson and asked 111m to check the washrooms for empty bottles m the trash. None was located. Mr De Luca then proceeded to meet WIth the gnevor m the presence ofMr RIchards, Mr Kemp and Mr Porvorka. He asked the gnevor If he felt alnght and the gnevor satd he was fine Mr De Luca then asked the gnevor Ifhe was takmg any medIcatIOn and the gnevor replied that he was not. Then, when asked If he'd been drmkmg, the gnevor mdIcated that he had a couple of dnnks at lunchtime, a couple of beers. At the mentIOn of dnnkmg, the gnevor began to get defenSIve and became almost mcoherent. Mr De Luca could smell the odour of alcohol on hIm more strongly 4 At that pomt, Mr De Luca said, he told the gnevor that he thought that he was mtoxIcated and as a result, he was not allowed to return to work. He was a nsk to hImself and others The gnevor became more agItated and began to argue wIth Mr De Luca. Mr De Luca cut hIS resIstance short by tellIng hIm that he'd had enough and that he, the gnevor, was released from duty for the balance of hIS ShIft. Mr Kemp then advIsed the gnevor that he should follow Mr De Luca's mstructIOns and leave the premIses. Mr Kemp and Mr RIchards escorted the gnevor to the locker room. Mr De Luca went to the front receptIOn desk and asked the receptIOmst to call a taxI to take the gnevor home When Mr Richards and the gnevor came in to the receptIOn area, Mr De Luca told the gnevor that he was formally requested to call hIm by mne o'clock a.m. on Fnday, March 25, and that Ifhe dId not receIve a call from the gnevor he'd call hIm. (Fnday, apparently, was a scheduled vacatIOn day for the gnevor ) Mr De Luca also mdIcated to the gnevor that he would be Issued a formal notIce of mtent to dIscIplme The next mornmg, the gnevor called Mr De Luca. He asked hIm what the sItuatIOn was. Mr De Luca explamed that the gnevor remamed relIeved of duty pendmg completIOn of the employer's mvestIgatIOn. To aSSIst m thIS mvestIgatIOn, Mr De Luca had already asked all of those other than the gnevor who were mvolved to submIt to hIm mdIvIdual wrItten statements. On Monday, March 28, 1994, the gnevor receIved by COlmer a formal notice of mtent to 5 dIscIplme The notice mdIcated, inter alia, that the gnevor had been relIeved from duty wIth pay effectIve March 24, 1994, and requested the gnevor to submIt to Mr De Luca wIthm three calendar days a wntten response explammg hIS actIOns On the same day, March 28,1984, the gnevor wrote out the followmg response Dear Mr De Luca. ThIS letter IS my response regardmg your letter to your employee, myself, who IS very, very shook up and tremblmg by all of these accusatIOns. In trymg to Improve myself by learmng addItIOnal Jobs and domg more than necessary, I have been concerned m my lack of advancement. All of these charges of theft, mtoxIcated condItIOn, endangerment of health and safetv to my co--workers and the mabIlIty to perform the tasks whIch I had completed. Your Impeachment of me on theft, endangerment to myself and coo-workers, mtoxIcatIOn and mabIlIty to perform my assIgned tasks IS grossly exaggerated and maccurate Perhaps I had a beer on my time at lunch but that dId not make me unfit for work. I do have a lot of pressure at home WIth my m-laws m surgery at the hospItal and my wife's phYSIcal condItIOn and strong feelIngs and concerns for them, plus my two young lads sportmg actIVItIes, our car repair and applIance mamtenance I am slowly resolvmg all of these Now I must take tIme away from thIS to oust these false statements I need all the money and more WIth the large bIlls pIlmg up Is there anythmg I can do WIthout losmg work hours that would lessen my much needed pay cheques, to get me m your good books? I plead for your clemency Your truthful employee, GIlles] Mayer The gnevor represented hImself as a hard workmg, truthful employee who had been falsely accused ofbemg mtoxICated on the Job and who was unJustIfiablv bemg forced to take precIOlls 6 tIme away from multIple emotIOnal and financIal problems to deal wIth these false accusatIOns. Mr De Luca dIscussed thIS response wIth the dIrector of the warehouse, Ms. Naseem Glaubltz, and the Human RIghts advIsor for the warehouse, Mr John Hams. They decIded to have the gnevor come m for a meetmg wIth them to dISCUSS hIS response and ask further questIOns. The meetmg was held on Apnl 5, 1994 In attendance were Mr De Luca, Ms. GlaubItz and Mr BIll McDowell, the general manager, operatIOns, on behalf of the employer, and the gnevor and Mr Kemp for the umon. The meetmg took place m a meetmg room m the admmIstratIve area of the warehouse Ms. GlaubItz had a senes of questIOns to ask the gnevor When she asked hIm whether he was dnnkmg alcohol at the work place, he responded no When she asked If he had any dnnkmg-related problems, the gnevor gave no response NeIther Ms GlaubItz nor Mr De Luca could recall any other speCIfic questIOns that the gnevor answered, however, they Said that theIr ImpressIOn was that the gnevor dId not gIve any substantial eVIdence to help hIS case The meetmg concluded WIth the employer representatIves notIfymg the gnevor that they would contmue relIevlllg hIm from duty WIth pay untIl the lllvestlgatIOn was completed, and they would then notIfy hIm of theIr declSlon. The next day, Ms. GlaubItz, Mr Hams, and Mr De Luca met to dISCUSS the mCIdent mvolvmg the gnevor m lIght of the results ofthe meetmg They also revIewed the gnevor's personnel file, which contallled all of hIS performance appraIsals, letters of commendatIOn and hIS dISCIplInary record They noted that there were several dISCIplInes recorded m the file for prevIOUS alcohol- 7 related offences. In light of these, they agreed that the gnevor should be termmated. Both Ms. GlaubItz and Mr De Luca Said that they thought that thIS was an appropnate dIsCIplInary response The gnevor had been dIscIplmed for prevIOUS alcohol-related offences m the warehouse and neIther came forward nor showed any desIre to come forward to management to ask for assIstance m dealing wIth any alcohol problem. In lIght of the fact that he had commItted a repeat offense related to alcohol, he was a safety nsk to others and termmatIOn was appropnate On Apnl 7, 1994, Ms. GlaubItz sent by couner the followmg letter to the gnevof' Dear Mr Mayer; ThIS letter IS further to the notice of mtended dIscIplme Issued March 28 1994, your response to same and our meetmg of Apnl 5th. Dunng our meetmg, you admItted to consummg one (1) beer at lunch and stated that you dId not belIeve that, on March 24, 1994, you were unfit for duty You further stated that you were pre-occupIed wIth your present personal life and that thIS was affectmg your work and therefore explamed your actIOns and condItIOn on March 24th. Mr Mayer, as explamed to you, your condItIOn on March 24 1994 IS unacceptable The observatIOns made by several employees such as your mcoherent and slurred speech, your mabIlIty to walk WIthout staggenng and the smell of alcohol on your breath, when combmed WIth your actIOns at work, can only lead me to conclude that you were m no condItIOn to work on March 24th due to the consumptIOn of alcohol and your ensumg mtoxIcated condItion. As a result, you placed not only your own health and safety m danger but also that of your coo-workers Although there IS no eVidence of theft, I cannot Ignore your prevIOUS record of dIscIplme for alcohol related mfractIOns WhICh mcludes a one (1) day suspensIOn on July 11, 1991 and a five (5) day suspenSIon from November 20 to 26,1991 mclusIve 8 Based on the aVailable mformatIOn, I regret to mform you that, effectIve ImmedIately, your servIces WIth the LIqUor Control Board ofOntano are termmated. Yours truly, N GlaubItz DIrector, Durham RegIOnal Warehouse The gnevor was termInated upon consIderatIOn of the most recent mCIdent m lIght of hIS prevIOUS record of dIscIplme for alcohol-related mfractIOns. Before proceedmg to conSIder the eVIdence of the gnevor It mIght be adVIsable to reVIew the prevIOUS alcohol related dISCIplInes receIved by the gnevor On June 26, 1991, the gnevor was relIeved from duty after reportmg late for scheduled overtIme and havmg the apparent smell of alcohol on hIm. The gnevor's response to the notice of mtended dIscIplme from the employer was as follows I would lIke to apologIze for my tardmess smce I was daydreammg m mv own personal lIfe whIle quenchmg my thIrst WIth a beer across the road from work. Although, I belIeved I could have handled the Job on hand, I accepted your authontatIve declSlon to relieve me from duty of the overtIme asked for I WIll try to prevent an) such mCIdent from happenmg agam. Thank you for your open mmd. The gnevor claimed he only had "a beer" whIle daydreammg at a bar across the road from the warehouse He promIsed to try to prevent such an 1l1cIdent from happemng agam. He was gIven a 9 I-day suspenSIOn. ThIS was Just four months before the next mCIdent, whIch occurred on October 28, 1991 On October 28, 1991 the gnevor was relIeved from duty because he had been observed opemng a case of mmIature bottles of lIquor, took a long unauthonzed break and had an apparent smell of alcohol on hIm. The gnevor's response to the notice of mtended dIscIplme from the employer was as follows In response to your letter dated October 29, 1991, you had observed the "apparent smell of alcohol" on me. As many other employees, I do have breakage occur, alcohol absorbtIOn m my quotmg Also, m response to "longer non-authonzed break", I used the men's faCIlItIes before reportmg to my work area. In response to your wItnessmg me " opening a case of Seagrams V 0 mImatures", thIS case was already partially opened and I often open a closed case If It IS much lIghter than the rest m weIght. Many times, due to errors by the manufacturer they are not a full case and therefore are transmItted to the exam room for correctIOn. With all due respect, I contributed my time and efforts to partIcIpate m non regularly scheduled productIOn and I feel I was wrongfully dIsmIssed therefore suffermg from a loss of possible wages earned The gnevor's letter mdIgnantly demed any wrongdomg and presented the gnevor as an honest, hard workmg employee who had been wrongfully accused by the employer The employer dId not accept thIS response The gnevor was gIven a 5-day suspensIOn and mstructed to contact Mr Bennett, who ran the employer's Employee ASSIstance Program. The gnevor told Mr Bennett that he dId not have a dnnkmg problem. TIus prompted a follow-up 10 letter from the employer dated December 17 1991, whIch stated that gIven the gnevor's response to Mr Bennett and the fact that alcohol had factored mto the last three dIscIplmes agamst the gnevor, the next sImIlar mCIdent would result m more severe dIscIplme up to and mcludmg discharge The gnevor gave eVIdence after claImmg protectIOn under sectIOn 9 of the Canada EVIdence Act and sectIOn 13 of the Charter of RIghts The gnevor also prefaced hIS eVIdence WIth a claim that hIS memory had not been good smce he was senously mJured m a car aCCIdent m the 1960's. When asked about the mCIdent of October 28,1991 whICh led to hIS five day suspensIOn, the gnevor retracted what he had said m hIS response He admItted that he dId, m fact, do the thmgs of whIch he had been accused. He also admItted that at the time, the alcohol he consumed was from cases of lIquor m the warehouse that he had broken mto He saId that he had broken mto cases of lIquor lIke thIS on about a dozen dIfferent occaSIOns. As to hIS response to Mr Bennett, the gnevor agreed that he told hIm that he dId not have a drmkmg problem. He said that Mr Bennett asked hIm whether he thought he should go on a rehabIlItatIOn program. At the tIme, lIke all alcoholIcs, the gnevor said, he dId not belIeve that he was an alcoholIc and so he refused. He told Mr Bennett that mstead, he would go to A A meetmgs and straIghten out hIS act. From that tIme onward he went to A A meetmgs but dId so megularlv sometImes gomg for months WIthout attendmg 11 Upon cross-exammatIOn, the gnevor admItted that at the end of 1992 he lost hIS dnver's lIcense because of dnnkmg. He said that thIS was the reason that he went to see hIS doctor It was at thIS tlme, he said, that hIS doctor made hIm realIze that he had a dnnkmg problem. When asked whether he thereafter contacted the employer's Employee ASSIstance Program regardmg hIS acknowledged problem WIth alcohol, the gnevor replIed that he recalled askmg for the telephone number but dId not recall usmg It. Later on m hIS testimony, however, the gnevor was asked on dIrect whether he was dnnkmg m 1992 and part of 1993 The gnevor replIed that he dIdn't recall If he was dnnkmg He then stated that he guessed he wasn't or the employer would have notIced. Turnmg to the mCIdent that led to hIS termmatIOn m early 1994, the gnevor stated that when he wrote m hIS response that the charges agamst hIm were grossly exaggerated and maccurate, he was statmg somethmg that was mcorrect. The only thmg that was grossly exaggerated, he Said, was hIS claim that he was not mtoxIcated. The gnevor also stated that he drank some L C B 0 alcohol on the date ofthe mCIdent, March 24 1994 He Said that he dIdn't recall what It was When you are mtoxIcated, he Said, you don't remember what you dnnk. It was enough, however, to cause hIm to show the SIgns that he had been dnnkmg The gnevor added that when he Said at the Apnl 4 meetmg that he had consumed one beer that dav he was not bemg accurate HIS mmd, he Said, was not a sober one He saId that he had taken a muscle relaxer on the mormng of the mCIdent and he belIeved that It Impaired hIm more than 12 one beer could do He agreed that at the meetmg he had demed takmg any medIcatIOn, but dId not know why he demed It. He said that perhaps It was to conceal weakness After that, he had a shot of the employer's whISky at the workplace as well as a beer across the street. In further testimony, the gnevor saId that he was pretty sure that he had more than one beer at the restaurant across. the street. The alcohol that he drank at the workplace was from breakage, after he mtentIOnally broke some bottles. He said that he drank at the restaurant across the street from the warehouse a lot. It got to be two to three times a week, dependmg upon hIS finanCIal SItuatIOn. As the years went on, he said, It got worse After he was termmated, the gnevor said, he sought treatment for alcoholIsm at Pmewood m Oshawa, WhICh was a program run by the Oshawa General HospItal. He said that he stayed there for twenty-one days as an m-patIent and went home on weekends At the present tIme, he said, he strll went to Pmewood to partICIpate III a relapse preventIOn group The group, he said, gave you a good boost when every week you say you are staymg dry He also stated that he was attendmg A A meetmgs as well When asked whether he had any lapses, the gnevor stated that he dId not go to Pmewood from August, 1994 to February, 1995 because he was qUIte mvolved at home Then, he began feelmg as If he was gomg to slIp He had the urge to slIp back. It was then, he said, that he started back III the next program 13 Counsel for the umon then drew the attentIOn of the gnevor to a notatIOn that was made by Ms G Campbell, hIS maJor counselor m February, 1995 She had made an entry saymg that the gnevor told her that hIS lawyer, i.e , counsel for the umon, told hIm to go mto long-term treatment before she would represent hIm. The gnevor agreed that thIS IS what he had SaId to Ms. Campbell When asked what he would have done If hIS lawyer had not suggested thIS, the gnevor SaId that he was lookmg forward to gomg back. There were lapses on hIS part he SaId, and sometimes he needed a lIttle push to do what he was supposed to do When the lawyer told hIm to get mto a long-term program, he SaId, he got on the phone to Pmewood so that he could get m as soon as possIble The gnevor further stated that the relapse seSSIOn had Improved hIS thmkmg He SaId that he dIdn't have a thust for dnnkmg and dIdn't even thInk about It. He added that he was gettmg to hate It for all the trouble, pam and expense It had caused hIm. He SaId that he felt that he'd benefitted [rom the Pmewood program and he planned to contmue on m relapse preventIOn. Accordmg to the gnevor, smce hIS termmatIOn m Apnl, 1994, he'd had an alcoholIc dnnk only once. He SaId that he could not recall the occaSIOn. He dId not know If a relatIve dropped m, or sometmg SImIlar had occurred. He SaId he had a beer to be a "host" he guessed. He SaId that he guessed that he dIdn't want to show them that he had a dnnkmg problem. He dId lImIt It to one dnnk.. He added that he had not been dnnkmg recently although he kept alcohol around the house all the tIme The alcohol was for show He dIdn't touch It. 14 Upon cross-exammatIOn, the gnevor was asked whether he ever consumed alcohol m the gap between treatment programs of August, 1994 to February, 1995 After pausmg for several moments, the gnevor responded that he could not recall If that was the one time he had the one dnnk when the relatIve came over He said that he dId not go on a bmge, although he had a lot of urges. He over-worked hImself, he said, to aVOId dunkmg about dnnkIng. The gnevor was also asked upon cross-exammatIOn whether he had lost other Jobs because of alcohol consumption. To thIS, the gnevor replIed, "no" Then, upon re-exammatIOn, counsel for the umon drew the attention of the gnevor to a May 3, 1995 clImcal note from Pmewood m WhICh the counsellor recorded the gnevor as statmg that he lost all of hIS other Jobs due to alcohol use He was asked whether the note was correct or Incorrect. The gnevor InItially stumbled In hIS response and then Said that he dId not belIeve that the statement as wntten was correct. He Said that If you went back to hIS prevIOUS employers, you would find that he never dId lose Jobs due to alcohol. He said that perhaps at the time he was usmg alcohol as an excuse for hIS predIcament. Fmally, the gnevor was asked upon cross-exammatIOn whether he had ever been charged WIth assault as a result of dnnkmg. The gnevor rephed that he'd never had any squabbles or fights at work whatsoever OutSIde of work, he had. He Said that the fights were pOSSIbly due to hIS alcohol problem at the time, but that dId not mean that alcohol was the reason. He Said that alcohol probably brought up the pressure He added that there was no body contact. 15 When asked on dIrect about hIS current sItuatIOn, the gnevor stated that he was marned, wIth two teenaged sons HIS finances, he said, were grave He worked part-time at GoodwIll Industnes of Toronto and had been there apprOXImately one year HIS wage was about seven dollars per hour HIS wIfe dId not work, but they did have students who stayed wIth them as boarders. The gnevor stated that If remstated, he would not break any rules. He said that he'd seen what It had done to hIm so far When asked why anyone should beheve hIm, the gnevor replIed that he guessed he'd Just have to show by example. He stated that he had proof at home There was lIquor at hIS place all the time and he had no desIre to have any If he could do It at home, he stated, he would do the same thmg at work. When asked whether he would dnnk at the restaurant across the street from the warehouse, the gnevor replIed that he would not dnnk there, unless he went there to eat. Then he corrected hImself, saymg that he would not dnnk there at all Why, he asked, would he put hIS foot m the snare? The gnevor then said that he'd had a year's practice bemg around alcohol and not dnnkmg He had boarders there that drank and they had offered hIm dnnks and he refused them. He said that he dIdn't even yearn for dnnk because It had caused hIm too much agony He wanted hIS Job back as soon as possIble because he needed the money and the benefits If he dIdn't get It, he smd, he would be m dIre financIal straits. 16 Also called to testlfy on behalf of the gnevor was Mr Chnstopher Sen, an addIctIOn counselor at the Pmewood Centre m Oshawa. Mr Sen had been at the Centre for about three and a half years and had performed assessment, referral and case management dutles. Pnor to that, Mr Sen had worked pnmanly m chIldren's serVIces, medIatmg Issues and problems ansmg m famIlIes wIth teenaged cluldren. He had a Bachelor of Social Work degree as well as a Bachelor's degree m SOCial SCIence He also had other trammg m the addIctIOns field, pnmanly compnsmg upgradmg courses m pharmacology, concurrent dIsorders and addIctIOn management. After Mr Sen completed detailIng hIS profeSSIOnal background, counsel for the umon requested that he be recogmzed by the Board as qualIfied to gIve opmIOn eVIdence regardmg the gnevor's rehabIlItative potential and success. Mr Sen was so recogmzed. Mr Sen stated that he first saw the gnevor on June 30, 1994 At the time, Mr Sen was covenng for Ms Gwynna Campbell, who was on vacatIOn. The gnevor requested entry mto the Pmewood Centre's 21-day rehabIlItatIOn program. ThIS was a program that focused on lIfestyle change, based on adaptmg the clIent's copmg mechamsms to healthIer choIces. The gnevor was accepted mto thIS program. Upon cross-exammatIOn, Mr Sen was asked a number of questlons about the referral form that was filled out for Mr Mayer on that day He agreed that the form mdIcated that the gnevor had receIved prevIOUS treatment for alcoholIsm m a reSidentIal 28-day program m North Bay some eIght years earlIer The gnevor's assessment sheet mdIcated that after gomg through thiS 17 program, the gnevor dId not use alcohol for SIX to mne months. Mr Sen also agreed that the referral form stated that the gnevor had been temporanly laid off by the employer The clImcal notes for June 30, 1994, he agreed, mdIcated that the gnevor stated that he had consumed four to five pmts of beer over three days m the prevIOus month and a half Accordmg to Mr Sen, the gnevor started m the program on July 11, 1994 He stayed as a resIdent m the first week. As to the remammg two weeks, he requested to come m on a day-care basIs, lIvmg at home and commutmg to Pmewood. ThIS request was granted. Dunng the three weeks of the program, Mr Sen Said, he was not the pnmary worker for the gnevor That person was Ms. Gwynna Campbell. He became more closely acquamted wIth the gnevor on February 21 1995, when the gnevor entered the relapse preventIOn group that he was conductmg, however, he was not the gnevor's pnmary worker untIl August, 1995, when Ms Campbell deCIded that he'd be better able to deal WIth the gnevor and the lawyer from the umon. Although Ms. Campbell was not called to testIfy her reports mdICated that the gnevor successfully completed the program. Ms Campbell's clImcal notes mdIcated that on August 16 1994, she contacted the gnevor accordmg to establIshed routme to evaluate Ius progress. He stated that he had mamtamed sobnety smce leavmg the program, although he was expenencmg some mantal problems. Her notes further mdIcated that on February 17, 1995, the gnevor requested and attended a case management seSSIOn. He stated, inter alia, that hIS lawyer suggested that he go mto long term 18 treatment before she would represent hIm. The gnevor was gIven a hst of agencIes that provIded long term care as well as a descnptIOn of Pinewood's own relapse preventIon program. The gnevor was requested to dISCUSS these WIth hIS lawyer to see WhICh would be most sUItable, and then have the lawyer get back to Ms. Campbell On March I 1995, Ms. Campbell made the followmg notatIOn m the chmcal notes for the gnevor [L ]awyer for the umon called wnter re GIlles dnnkmg hIStory States [the gnevor] IS trymg to get hIS Job back - and Ms. Noble IS lookmg for some kmd of assurance that he mdeed IS not dnnkmg and has rehabIhtated hImself. AdVIsed her that GIlles dId not tell me dIrectly that he had been fired from work due to dnnkmg on the Job - wrIter stated [the gnevor's] focus [durmg] the [mItIal] assessment was [his] assault charge and bemg separated from hIS famIly AdVIsed Ms. Noble that I would contact GIlles and have hIm come m to update what has been occurnng smce our conversatIOn February 20, 1995 From the gnevor's mItlal assessment m May, 1994 to March, 1995, the gnevor had never dIsclosed to Ms. Campbell that hIS mam focus m seekmg rehabllItatIOn was to get back a pOSItIOn that he had lost due to dnnkmg on the Job On February 21,1995 the gnevor commenced attendmg the relapse preventIOn program conducted by Mr Sen. Accordmg to Mr Sen, thIS was an educatIOnal group that talked about the pItfalls to be aware of m recovenng and mamtammg abstmence The tests that the gnevor completed soon after the outset of thIS program mdIcated that m the past 12 months, the gnevor had a low level of alcohol dependence but substantIal problems as a result of hIS dnnkmg These tests, Mr Sen Said, were based upon self-reported data -- as were all of the assessments made by 19 hIm and the other counselors. The gnevor attended 14 weekly therapy seSSIOns, constltutmg phases 1 and 2 of the relapse preventIOn program. On August 15, 1995, the gnevor began another program Mr Sen said that the gnevor was very punctual m hIS attendance and never mIssed any seSSIOns He was always appropnate and took the groups senously On November 2, 1995, the gnevor Jomed vet another relapse preventIOn group Mr Sen added that as of the date of hIS own testimony (December 12, 1995), the gnevor was m a structural relapse preventIOn program bemg led by hIm. Normally, Mr Sen saId, clIents dId not return for serVIce lIke the gnevor dId. When the gnevor commenced attendmg phase 2 of the relapse preventIOn program on May 3, 1995, he made some comments which were recorded m Mr Sen's clImcal notes as follows [The gnevor] stated that he was under a tremendous amount of pressure to get a lot of money to save losmg hIS house. He says that he IS also trymg to get hIS Job wIth the L C BOback. He says he IS commItted not to dnnk as he has lost all hIS Jobs m the past due to alcohol use He stopped dnnkmg due to court mterventIOn and what has helped hIm very much IS staymg away from hIS dnnkmg fnends The gnevor said that he had lost all of hIS prevIOus Jobs due to alcohol use When asked for hIS ImpreSSIOn of the grievor's rehabIlItatIOn, Mr Sen said that m hIS work wIth the gnevor he found a stark dIfference from the stereotvped presentatIon. Refernng to the latter he said that many persons wIth alcohol problems were m some sort of demal and dIdn't see the 20 problems oftheIr dnnkmg as others dId. He said that he heard, "I have It under control," over and over agam. By contrast, Mr Sen said, the gnevor was open to accept that he dId have a problem wIth addIctIOn. HIS addICtIOn was sparked by exceSSIve stress and no copmg mechamsms to deal wIth It. The gnevor had been very open, he saId, and appeared to be honest. Expandmg upon the gnevor's honesty, Mr Sen mdIcated that he had worked wIth chents who would do anythmg or say anythmg to get theIr jobs back. ThIS was not so wIth the gnevor It dId not appear to Mr Sen that he was fabncatmg mformatIOn or covermg up In group, the gnevor always admItted to how much stress he was under If a person m group demed that, he said, he had not changed hIS own approach to hIS lIfestyle Mr Sen also commented upon the gnevor's good attendance record and punctuahty Generally, he said, If a chent began to backshde, hIS attendance would slack off and he would become very secretIve The rule of the group was that members had to be abstment for 24 hours before the group or leave It. ThIS rule never came up WIth the gnevor Based upon the mformatIOn that the gnevor self-reported and hIS expenence WIth the gnevor m the group, Mr Sen Said, these were suggestive of development m the gnevor of control over hIS alcohol problem. When asked upon cross-exammatIOn how hkely It was for the gnevor to revert to hIS old pattern, Mr Sen responded that the gnevor stated when he came m that he was dnnkmg two to three 21 dnnks per day In group, two years later, the gnevor would reply "no" when asked Ifhe had any cravmg for dnnk. There was qUIte a dIfference between the two The gnevor had Improved consIderably regardmg hIS consumptIOn of alcohol As to the aVailabIlIty of lIquor m the workplace constItutmg a problem, Mr Sen said that the gnever would have to remam cautIOus and aware When counsel for the employer pressed Mr Sen about the fact that when the gnevor was fired he had consumed alcohol that was aVailable at work, Mr Sen responded that the gnevor had been around aVailable alcohol for the past two years and had opted not to use It as a coping mechamsm. Pmewood, he said, usually stayed m contact WIth clIents for five to SIX months. It had been m contact WIth the gnevor for two years. He had been under a mIcroscope for a much longer penod. It dId not appear to hIm m group Mr Sen Said, that the gnever was consummg alcohol m all that time At the end of Mr Sen's cross-exammatIOn, however, he was forced to make a stnkmg admISSIOn. Counsel for the employer had found that on two dIfferent copIes of the chmcal notes that had been prOVIded to her, Mr Sen's note for August 16, 1995, dIffered. On one, the note Said. GIlles attended the last seSSIOn tomght of R P II statmg he was domg well that he has been sober for many months and feels confident about hImself He stated he felt he learned a lot from other people's expenence On the other copy, the note was far more extenSIve It Said 22 GIlles attended the last seSSIOn of R P II tomght statmg he was domg well He stated he had been sober now for many months and feels confident about hImself. He stated that he was grateful to have attended R P II as he felt that he learned a lot from other peoples' expenences. GIlles has been a very posItIve and consIstent member of the group and has demonstrated strengths m the area of stress management or tensIOn reductIOn. He has shown mterest m attendmg an R P III group If one starts up The note added comments about the gnevor's pOSItIve and consIstent membershIp m the group and hIS demonstratIOn of strengths m the area of stress management or tensIOn reductIOn. When counsel for the employer asked hIm to explam how thIS happened, Mr Sen conceded that he had taken out the ongmal page of the clImcal notes, WhICh contamed the shorter entry for August 16, and had elaborated on a new page He saId that he dId so because he wanted to wnte down thmgs that would be to the gnevor's benefit m hIS gnevance proceedmg No further WItnesses were called on behalf ofthe gnevor III. Issues In theIr submIssIons at the completIOn of the eVIdence, counsel for the partIes raIsed the followmg Issues (1) Whether the dIscharge of the gnevor m Apnl, 1994, was for Just cause, 24 was an mcorngIble employee who had to be termInated. It was stressed that there was eVIdence to mdIcate that the gnevor was punctual and a good worker wIth no chromc absenteeism problem. The gnevor was not a problem employee all the tIme, It was submItted, but an employee who dId hIS Job with Isolated IncIdents of mIsconduct. I have no hesitatIon m concludmg that m the CIrcumstances of the present case, termInatIOn was well wIthm the range of reasonable dIsciplInary responses to the gnevor's mIsconduct. The two pnor IncIdents of alcohol-related misconduct were not so dIstant In tIme as to have no beanng upon the diSCIplInary response of the employer to the final IncIdent of mIsconduct. Moreover, the gnevor's response to the employer's notIce of Intent to dISCIplIne could not have helped but reInforce the conclUSIOn of the employer that he, mdeed, was an Incorngible employee who should be termInated. DespIte overwhelmIng eVIdence that he was severely mtoxIcated on March 24, 1994, the gnevor represented hImself to the employer as a hard workIng, truthful employee who had been falsely accused of beIng IntoxIcated on the Job and who was unJustIfiably been forced to take precIOUS tIme away from multIple emotIOnal and financIal problems to deal WIth these false accusatIOns. ThIS could only have clInched the ImpressIOn m the mInd of the employer that further correctIve dISCIplIne would not work and termInatIOn was the only appropnate response (2) Post-Termination Evidence of Rehabilitation Refernng to Companv Miniere Quebec Cartier v United Steelworkers of A merica, Local 6869 25 (1995), 125 D L R. (4th) 577 (S C C), counsel for the employer submItted that it was beyond my JunsdIctIOn to consIder post-termInatIOn eVIdence of rehabIlItatIOn upon the questIOn whether the gnevor should be reInstated to employment. ThIS Issue was addressed m a pnor award of thIS VIce-ChaIr In Re Pluska and Liquor Control Board of Ontario (1996), G S B No 1322/94 (Roberts), SInce reported at 54 L.A.C (4th) 193 (1996) In that award, I SaId, In pertment part: It seems eVIdent that where dIsmIssal IS Imposed In the form of a dISCIplInary penalty an OntarIO arbItrator or the Gnevance Settlement Board has statutory JunsdIction to SubstItute a lesser penalty for a "Just cause" dIsmIssal If In all the CIrcumstances It appears Just and reasonable to do so The CIrcumstances to be assessed by the arbItrator Include post-termInatIOn eVIdence of rehabIlItatIOn. 54 L A. C , at 200 It was concluded that In the case of a dISCIplInary dIsmIssal, the Gnevance Settlement Board possessed JunsdIctIOnal to substItute a lesser penalty based upon, inter alia, post-termInatIOn eVIdence of rehabIlItatIOn. In the present case, the gnevor was termmated as a matter of dIscIplme AccordIng to the conclusIOn I reached In Re Pluska, supra, I am entItled to conSIder post-termInatIOn eVIdence of rehabIlItatIOn m such cases to determIne whether It would be Just and reasonable to SubstItute a lesser penalty for the dIscharge I am mclIned to adhere to the same VIew In the present case and accordmgly, thIS Issue IS resolved agamst the employer 26 (3) Substitution of a Lesser Penalty, Counsel for the employer submItted that, In any event, the post-termmatIOn eVIdence of rehabIlItatIOn was not credIble enough to support a findIng that It would be Just and reasonable to substItute a lesser penalty for the dIscharge The eVIdence of Mr Sen was shown to be the eVIdence of a person actIng as an advocate for the gnevor and not the obJectIve eVIdence of an Independent thIrd party The eVIdence of the gnevor was not that of a truthful person who had sIncerely recogmzed hIS accountabIlIty for hIS own mIsconduct. In short, It was submItted, the eVIdence of these WItnesses faIled to proVIde any credIble assurance that If reInstated, the gnevor would not repeat the same mIsconduct. Counsel for the umon submItted that the post-termInatIOn eVIdence of rehabIlItatIOn was suffiCIently credible to JustIfy subStItutIng a lesser penalty She stressed that In thIS eVIdence, the gnevor admItted that he had consumed L C B 0 alcohol at work In the InCIdent leadIng to hIS dIscharge, even though the employer dId not have any proof of thIS The gnevor also admItted that he had probably done so a dozen tImes before that. WhIle thIS eVIdence dId not make the gnevor look good, It was submItted, It demonstrated that the gnevor was gIVIng honest testImony and that thIS honesty was a SIgn that the gnevor was on the road to recovery As to the eVIdence of Mr Sen, counsel dIsputed the assertIOn that he became an advocate for the gnevor It was submitted that In hIS testimony, Mr Sen attempted to remaIn obJectIve, gIVIng a reason for each OpInIOn. 27 After carefully reVIeWIng the eVIdence of Mr Sen and the gnevor, I am mclIned to agree WIth the submIssIon of counsel for the employer that It falls to provIde any credIble assurance that If reInstated, the gnevor would not repeat the same mIsconduct. In lIght of thIS, It perhaps goes WIthout saYIng that It would not be Just and reasonable to SubstItute a lesser penalty for the dIscharge In the present case Turmng first to the eVIdence of Mr Sen, the sIgmficance of hIS actIOns m surrepstIcIOusly alterIng hIS clImcal notes for the purpose of assIstmg the gnevor m hIS gnevance proceedmg cannot be Ignored. HIS actIOns coloured WIth the tamt of advocacy all of hIS testImony The OpInIOnS that he gave on the WItness stand cannot be regarded as obJectIve In nature It must be concluded that they were the opmIOns of a man who regarded hIS role as one of supportmg the gnevor m aChIeVIng hIS obJectIve of gammg reInstatement to hIs employment. Perhaps thIS IS not surpnSIng, gIven that Mr Sen's role m counsellmg the gnevor at PInewood was to be SupportIve of hIS clIent. Another aspect of thIS role was to take at face value much of the InfOrmatIOn that the gnevor self-reported In hIS documentatIOn and group seSSIOns The maIn mdIcator of the veraCIty of thIS InfOrmatIOn, Mr Sen saId, was the excellent attendance and punctualIty record of the gnevor m seSSIOns, because these tended to slIde when a clIent had resumed abUSIng alcohol. I note from the eVIdence, however, several examples suggestIng that the mformatIOn that the 28 gnevor self-reported to PInewood mIght not have been so credIble The most glanng example of thIS was the assertIOn of the grIevor at the outset of phase two of the relapse preventIOn group that he had lost all of hIS prevIOus Jobs due to alcohol use When asked about thIS at the heanng, however, the gnevor demed that he had lost any of hIS previous Jobs because of alcohol. He saId that If you went back to hIS prevIOUS employers, you would find that he never dId lose Jobs due to alcohol He also saId that perhaps at the tIme he was USIng alcohol as an excuse for hIS predIcament. Another example that IS worthy of mentIOn was the mIsrepresentatIOn by the gnevor of hIS reason for seekIng rehabIlItatIOn at PInewood. ImtIally, the gnevor stated that he had only been laId off from hIS Job and he was seekIng rehabIlItatIOn because of an assault charge and beIng separated from hIS family The real reason for hIS presence at PInewood was not known untIl the lawyer for the umon told Ms Campbell In February - March, 1995, that the gnevor was m rehabIlItatIOn because he had been dIscharged for dnnkIng on the Job and was trYIng to get hIS Job back. It seems noteworthy that shortly after that, Ms. Campbell stopped beIng the grIevor's pnmary worker Turmng to the gnevor's punctuality and attendance at group seSSIOns, these cannot be credIted WIth the sIgmficance that Mr Sen apparently gave them. It IS noted that accordIng to the eVIdence even when the gnevor was dnnkmg he managed to mamtaIn a good record for attendance and punctualIty at work. It would seem to be reasonable to Infer that the same would hold true m the case of the group seSSIOns 29 ThIs bnngs me to the credibIlIty of the eVIdence gIven by the gnevor at the heanng. I agree that, as counsel for the umon stressed In her submIssIOns, the gnevor voluntanly made some admIssIons about dnnkmg L C B 0 alcohol at work and conceded that the employer's verSIOn of the events leadIng to hIS dIscharge was much closer to the truth than hIS response I cannot, however, consIder these admIssIons to be a conclusIve demonstratIOn of the credibIlIty of the entIrety of the gnevor's eVIdence. There were too many other mdIcatIOns that the gnevor was not beIng straIghtforward and honest In hIS testImony For example, the grIevor represented In hIS eVIdence that he contacted PInewood about gOIng Into Its relapse preventIOn program In February, 1995, because he began feelIng as If he was gOIng to slIp It seems clear from the clImcal notes at PInewood, however that the real reason that he sought relapse protectIOn treatment was that counsel for the umon refused to represent hIm In hIS gnevance proceedmg If he dId not do so It was not hIS Idea to return to Pmewood. The gnevor also represented In hIS eVIdence that when he sought treatment for alcoholIsm at PInewood, he stayed there for twenty-one days as an In-patIent and went home on weekends Accordmg to the clImcal notes and Mr Sen's eVIdence, however, the gnevor only stayed as an m-patIent for the first week of the program and then at hIS own request, he was permItted to attend as a day-patIent for the remaInmg two weeks. DUrIng thIS tIme, he lIved at home and commuted to Pmewood on a daIly baSIS 30 In addItIOn, there were sIgmficant dIscrepancIes m the eVIdence regardIng the gnevor's consumptIOn of alcohol both before and after hIS termmatIOn. The gnevor was asked on dIrect exammatIOn whether he was dnnkIng In 1992 and part of 1993 The gnevor replIed that he dIdn't recall If he was dnnkIng He then stated that he guessed he wasn't or the employer would have notIced. Upon cross-eXamInatIOn, however, the gnevor had to admIt that at the end of 1992, he lost hIS dnver's lIcense because of drInkmg The gnevor also testIfied that SInce hIS termInatIon 111 Apnl, 1994, he'd had an alcoholIc dnnk only once. Upon cross-eXamInatIOn, the gnevor was asked whether he ever consumed alcohol III the gap between treatment programs from August, 1994 to February, 1995 The gnevor responded, inter alia, that he could not recall If that was the one tIme he had the one dnnk. The clImcal notes for June 30, 1994 and May 3, 1995, told a dIfferent story The June 30 note saId, "GIlles states he has drunk 4 pmts-5 pInts of beer over three days In the last month and a half" The May 3 note SaId that the gnevor "stated he had been sober for 1 1/2 months." Mr Sen SaId that the latter note meant that the grIevor had not taken any alcoholIc dnnk In that tIme ThIS leads to a strong Inference that In the penod ImmedIately precedIng those 1 1/2 months, the grIevor had consumed alcohol. In lIght of the credibIlIty problems m the post-termInatIOn eVIdence of rehabIlItatIOn, I must conclude that thIS eVIdence faIls to provIde any reasonable assurance that the gnevor IS mdeed, rehabIlItated. In the absence of credIble eVIdence of rehabIlItatIOn, the conclusIOn seems mescapable that It would not be Just and reasonable to substItute a lesser penalty for the 31 dIscharge of the gnevor (4) The Ontario Human Rights Code" Refemng to Re Samuel. Son & Co and United Steelworkers of America, Local 6398 (1995) 50 L A. C (4th) 321 (Clement), counsel for the umon submItted that the employer had faIled reasonably to accommodate the gnevor's Illness of alcoholism as reqUIred under the OntarIO Human RIghts Code In thIS submISSIOn, counsel stressed that the gnevor was termInated when It ought to have been clear to the employer that he had an alcohol-related problem and he reqUIred accommodatIOn. Instead of termInatIng the gnevor, It was submItted, the employer should have offered hIm a treatment program and tIme to thInk about hIs mIsconduct WIth a warnIng that If he dId not accept rehabIlItatIOn, he would be termInated. Counsel for the employer submItted, on the other hand, that at the tIme of termmatIOn, there was nothmg In the gnevor's behavIOr to mdIcate that he even acknowledged that he had an alcoholIsm problem, let alone any recogmtIOn on hIS part that he needed rehabIlItatIOn. In thIS submISSIOn, counsel referred to the nature of the gnevor's wntten response to the employer's notIce of mtent to dIscIplIne and hIS behaVIOr at the subsequent meetIng WIth the employer, when he had UnIon representatIon. Counsel also referred to the fact that tWIce before, the gnevor had been referred to the employer's Employee ASSIstance Program and m both cases he demed that he had a problem. Nothmg good happens m terms of rehabIlItatIOn, counsel submItted, untIl an employee recogmzes that he has a problem. In lIght of the faIlure of the gnevor to recogmze thIS, the 32 employer acted reasonably and In complIance wIth the Human RIghts Code I accept the submIssIOn of counsel for the employer At the tIme of termmatIOn, the gnevor gave no mdIcatIOn to the employer that placmg hIm m a treatment program would have any reasonable chance of successfully rehabIlItatmg hIm m the foreseeable future Instead of demonstratmg that he recogmzed that he had a problem and was wIllIng to change, the gnevor mIsrepresented hImself to the employer as the vIctIm of a false accusatIOn that he was IntoxIcated on the Job In prevIOUS alcohol-related InCIdents, the gnevor had been referred to the employer's Employee ASSIstance Program and had refused help, advIsIng Mr Bennett that he dId not have a problem. In lIght of the faInt hope of success presented by the gnevor, It must be concluded that the employer acted reasonably and In complIance WIth the Human RIghts Code m termInatmg hIm I also note from my own perspectIve that the gnevor saId In hIS testimony that In late 1992, when he lost hIS dnver's lIcense due to alcohol-related mIsconduct, he was made to realIze by hIS doctor that he had a problem WIth alcohol, but even then, he dId not seek treatment through the Employee ASSIstance Program or any other program. The gnevor said that he thought he asked for Mr Bennett's telephone number but dId not go any farther A dIsease of the WIll cannot be overcome WIthout the exerCIse of WIllpower The grIevor's conduct IndIcated that thIS WIllpower was sadly lackIng. Even now, there IS no credible eVIdence before me of any lIkelIhood of Improvement m the gnevor's condItIOn In the foreseeable future See Re Samuel, Son & Co supra at 332 33 IV Conclusion The gnevance IS dIsmIssed. cA Dated at Toronto, Ontano, thIS 12 day of November, 1996 ~, - I