HomeMy WebLinkAbout1994-1322.PLUSKA96_04_15
ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARrO
1111 GRIEVANCE COMMISSION DE \., ~ ., \ t-1'
SETTLEMENT REGLEMENT ~~(J ~{'l" ('-
(\
BOARD DES GRIEFS \i'
180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TEU!PHONE (416) 326-1388
180, RUE DUNDAS OUEST; BUREAU 2100, TORONTO (ON) M5G 128 FACS/MILE/TELECOPIE (416) 326-1396
.-
GSB # 1322/94
OLBEU # OLB206/94
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OLBEU (Pluska)
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 Counsel
Ontario Liquor Boards Employees' Union
FOR THE M Gage
EMPLOYER Counsel
Liquor Control Board of Ontario
HEARING March 26, 29, 1996
I
INTERIM AWARD
I.
At the outset of the heanng m the present arbItratIOn, counsel for the umon mdlcated that the case
for the gnevor would be founded, at least m part, upon post-termmatIOn eVIdence of
rehabIlItatIon from an alcoholIsm problem. Counsel for the employer then entered a prelImmary
objectIOn to JunsdIctlOn. It was submitted that the recent decision of the Supreme Court of
Canada m Compagnie Minie Quebec Cartier v JvJetallurgistes Unis D'4merique, Local 6869
(1995),95 eLL C 141,253 (S C C) (Cartier) effectively forbade the admIsSion of
post-termmatlOn eVIdence ofrehabIhtatIOn.
Bv agreement between the partIes, we proceeded to hear eVIdence from a witness for the
employer Mr NiCk VIrdo, and at the conclusIOn of hIS eVIdence we turned to hear argument
upon the prelImmary obJectIOn. For reasons whIch follo\\', I have deCIded to dIsmISS the
prclImmaI") objectIOn to the followmg extent. the post-termmatlOn eVidence of rehabIlItatIOn Will
be admItted, however at the conclUSIOn of the endence upon the ments I WIll enteIiam argument
regardmg the extent to WhICh the post-termmatIOn eVIdence of rehabIlitatIOn should be relIed
upon m my award. I antlcIpate that thIS argument WIll address, inter alia, the questIOn whether a
/
2
termll1atlOn for ll1nocent absenteeism due to alcoholIsm may be treated under the Crown
Employees' Collectlve Bargall1mg Act as If It were a matter soundll1g m dlsclplme
- -
II.
Accordmg to Mr VIrdo, a Human Resource AdVIsor wIth the employer, the gnevor's attendance
was below average m 1993 and very below average m 1994 Many of her absences were
supported by medIcal documentatIOn mdIcatmg that they were due to anxIety and depression.
When the employer requested the grievor to consent to have her physICIanS release more detailed
medICalll1fOlmatlOn to It, however, the gnevor declmed. ThIS occurred on more than one
occasIOn.
Fmally when the gnevor faIled to return to work as expected m August, 1994 after an absence
of more than four months, the employer decided to termmate her for mnocent absenteeism. On
August 31, 1994 the emplo) er sent the gnevor the followmg letter'
Ms. Jeanne Pluska
1855 Maple Ridge Dnve
Apt. # 42
MIssIssauga, Ontano
L4W 2N7
ThiS IS a follow up to Mr Kaladeen's letter of August 15th, 1994, WhICh dIrected
'"
-'
you to either report to work or provide supportmg medical mformatlOn by August
29th, 1 994
The purpose of th~ August 15th, letter was to draw to your attentIOn the
senousness of the SItuatIOn and hopefully obtam medical mformatIOn regardmg
your current status.
I have revIewed your letter dated August 25th, 1994 and It appears that you have
made httle attempt to comply with the above request for medical mformatIOn.
We have made numerous attempts to confirm your status, m order to deteImme
our abIhty to accommodate your SItuatIOn. Your attendance continues to declme
wIth no eVIdence of any future Improvement.
You have been made aware of your detenoratmg attendance problem on
numerous occaSIOns over the past two years. ThIS mcluded many dISCUSSIOns and
letters from your supervIsors as well as the Attendance RevIew Commlttee
Based on the mformatIOn WhiCh we have aVailable, we must conclude that
[there] is no reasonable prospect that you WIll be able to attend work. on a regular
basIs m the foreseeable future.
As a result of all of the above, your employment wIth the L C BOIS bemg
termmated effectIve August 29th, 1994
Yours truly,
(Signature)
J P Nestor
DIrector, Traffic &.. Customs
The employer apparently was unaware until after teImmatlOn that alcoholIsm played a role m
causmg the absenteeism of the gnevor There seems to be lIttle doubt that the refusal of the
gnevor to complv with the employer's repeated requests for more detailed medIcalmformatlOn
had kept thIS aspect of her problem out of the employer's hands For purposes of the prelImmary
obJectlon, however the employer dId not dIspute that alcohohsm probably \vas the root cause of
4
the gnevor's absences.
=:
III.
Counsel for the employer submItted that even If alcoholIsm played a pIvotal role m causmg the
gnevor's absences, the decIsion of the Supreme Court of Canada in Cartier stood for the
proposItIOn that It was beyond my JunsdIctIOn to admit post-termmatlOn eVidence of
rehabIlItatIOn. Accordmg to counsel for the employer, m Cartier the Supreme Court found that
once an arbitrator concluded that at the time of dIsmIssal the employer had Just cause to dIsmIss,
the arbItrator's JunsdIctIOn was exhausted. The arbItrator would exceed his or her JurIsdIctIOn If
he or she attempted to go on to determme whether to SubstItute a lesser penalty based upon, inter
alia, post-termmatIOn evidence of rehabIlItatIOn.
Counsel for the umon, on the other hand, submItted that Cartier was mapplIcable. Cartier, It was
submitted, was lImIted m applIcation to matters governed by the Quebec Labour Code, whIch did
not expressly authonze arbItrators to substItute a lesser pe.nalty for a "just cause" dIsmissal The
Ontano Labour RelatIOns Act (OLRA) and the Crown Employees' CollectIve Bargammg Act
(CECBA), It was submItted, expressly authonzed arbItrators to substitute for a "Just cause"
dlsmlssal "such other penalty as seems Just and reasonable m the circumstances" (OLRA, s
48(17), CECBA, s. 19(3)) Under a long lme of authonty, It was submItted, the "CIrcumstances"
to be conSIdered m determmmg whether to subStltute a lesser penalty mcluded post-termmatIOn
eVIdence of rehabIlItatIOn.
5
IV
-
In Cartier, an arbItrator ordered the remstatement of an employee who had been termmated for
exceSSive absenteeIsm due to alcoholIsm. Pnor to dISnllSsmg the employee, the employer had
met hIS absences wIth diSCIplInary sanctIOns. Many of these sanctIOns were subsequently reduced
in exchange for promIses by the employee to seek treatment for hIS alcohol problem. After
renegmg on these promises and once agam becommg absent due to hIS alcohol problem, the
employee was dIsmIssed. He then grieved under artIcle 10 01 of the collective agreement that "he
was not dismissed for just and suffiCient cause" The arbitrator concluded that the emplover had
"just and suffiCient cause" to dIsmISS the gnevor at the time when he was dIsmIssed, however
because the gnevor had successfully undergone an alcohol treatment program between the tlme
of hIS dismIssal and the arbItratIOn, the arbItrator remstated the gnevor on a last-chance basIs.
The employer sought JudicIal reVIew
In the Quebec Supenor Court, the deCISIOn of the arbItrator was quashed, however, a majonty of
a three-judge panel of the Quebec Com1 of Appeal reversed and restored the arbitrator's deCISIOn.
In IllS reasons for judgment m the Court of Appeal, MOlsm, J A. noted that alcoholIsm was
properl) regarded as an Illness and as a result, absenteeism due to alcoholIsm had to be treated as
mnocent absenteeIsm. As such, revlewmg a dismIssal for absenteeism due to alcoholIsm not
onl) mvolved determmmg whether the gnevor's alcoholIsm Impaired hIS abilIty to be a regular
attender but also whether he was lIkely to become a regular attender m the foreseeable tuture
6
The employer appealed to the Supreme Court of Canada.
-
The Supreme Court of Canada reversed, settmg aSide the decisIOn of the Court of Appeal and
restonng the deCISIOn of the Quebec Supenor Court. Speakmg for a unammous court, L'Hereux-
Dube J said, m pertment part.
[U]ltImatel), the arbltrator'sjunsdICtlon [under article 1001 ofthe collectlve
agreement] IS lImited in that he IS reqUIred to address the speCIfic Issue before
him. whether or not the declSlon to dIsmISS the employee m questIOn was
justlfied. In particular, the arbitrator IS reqUIred to determme whether or not the
Company had just and sufficient cause for dlsmlssmg the employee as at the time
when the employee was actually dismissed
As a general rule, an arbitrator revIewmg a declSlon by the Company to dIsmISS
an employee should uphold the dismissal where he IS satisfied that the Company
had just and sufficIent cause for dismlssmg the employee at the time that It did so
The peculIantles of alcoholIsm do not JustIfy departmg from thIS rule. [The
mnocent absenteeism analYSIS of Moism, J in the Court of Appeal], If performed
as at the time the employee was dismIssed, IS reasonable and IS entlrely wlthm the
junSdlctIOn of the arbItrator In my VIew, an arbitrator can rely on
[subsequent-event eVidence], but only where It IS relevant to the Issue before him.
In other words, such eVIdence will only be admissible If It helps to shed lIght on
the reasonableness and appropriateness of the dismissal at the time that it was
Implemented. Accordmgly, once an arbItrator concludes that a declSlon by the
Company to dIsmISS an employee was justified at the time that It was made, he
would be exceedmg hIS jurisdIctIOn Ifhe relIed on subsequent-event evidence as
grounds for annulmg the dismIssal Id. at paras. 11-13 (emphasis m ongmal)
L'Hereux-Dube J gave two polIcy reasons for hmltlng the jUnSdlctIOn of arbitrators to
determmmg whether there was just cause for dismIssal as of the time of dismissal These were as
follows
(1) "To hold otherwise would be to accept that the result of a gnevance
concernmg the dismIssal of an employee could vary dependmg on when It IS filed
and the llme lag between the mltlal filmg and, the final heanng by the arbitrator",
id. at para. 13, and,
7
(2) Allowll1g subsequent-event eVIdence to be considered "would lead to the
absurd conclUSIOn that a deCISIOn by the Company to dIsmIss an alcohohc
emplovee could"be overturned whenever that employee, as a result of the shock of
bell1g dIsmIssed, decIdes to rehabIhtate hImself, even If such rehabIlitatIOn would
ncver have occurred absent thc deCISIOn to dIsmIss the employee", id.
Then, summanZll1g her deCISIOn, L'Hereux~Dube J stated," There IS no proVISIOn m Quebec
labour law or Il1 the collective agreement WhIch would permIt a labour arbItrator to overturn a
deCISIOn by the Company to dIsmISS an employee notwlthstandmg the fact that the Companv
demonstrated Just cause for the dismissal" Id. at para. 14
V
The observatIOn by the learned Justlce that Quebec labour law did not permit a labour arbitrator
to overturn a "Just cause" dIsmIssal might have startled some labour law commentators m the
provmce of Quebec SectIOn 100 12(f) of the Quebec Labour Code, 1977, c.41, s.48, 1983 c 22,
s.74, had prevIOusly been thought to grant arbItrators thIS JunsdlctIOn. For example, m R. P
Gagnon, Le DrOIt du TraVail du Quebec Practlques et Theones (2e Edltlon) (Yvon BlaiS Inc ),
the author Said.
Under sectIOn 100 12 (f) now m effect, the arbItrator may clearly assess the
penalty With respect to fault, takll1g mto account all the Circumstances of the case,
and consequently confirm, reVIse or reverse the emplover's deCISIOn. The
arbItrators may SubstItute hIS own deCISIOn "that seems Just and reasonable"
accordll1g to the Clrcumstan~es of the case Id. at 461 (EnglIsh translatIOn)
A SimIlar observatIOn was made by the learned authors of Brown and Beatty, Canadian Labour
8
ArbItratIOn (3rd edItiOn) ThIs text stated, m pertment part, "[A]ll the applIcable Labor Relations
Acts now mclude a provISIOn grantmg the arbItrator power to substItute some penalty other than
- -
that mvoked by the employer" Jd. at 7 1300 The Quebec Labour Code was one of the acts cIted
m support of this statement.
Still, sectIOn 100 12 (f) of the Quebec Labour Code IS conSiderably more vague m thIS area than
the Ontano Labor RelatiOns Act. It proVIdes as follows
100 12 In the exerCIse of hIS dutIes the arbitrator may (f) m dlsclplmary
matters, confirm, amend or set asIde the decIsiOn of the employer and, If such IS
the case, Substitute therefor the declSlon he deems faIr and reasonable, takmg mto
account the cIrcumstances concernmg the matter
As can be seen, thIS provISIOn does not expressly state that the arbitrator may set aSide a
dIsmissal for just cause. Perhaps thIS IS what convmced L'Hereux-Dube J that there was no
prOVIsIon m Quebec labour law to permIt an arbitrator to overturn a "just cause" dIsmIssal.
The Ontano Labour RelatIOns Act leaves no doubt that arbItrators have thIS jUnSdlctiOn. It
proVIdes, m peItment part.
48 (17) SubstItutIOn of penalty --- Where an arbitrator or arbItratIOn board
determmes that an emplovee has been dIscharged by an employer for cause
the arbitrator or arbitratIOn board may subStltute such other penalty for the
discharge as to the arbItrator or arbItratIOn board seems just and reasonable m
all the CIrcumstances.
Arbitrators are expressly authorIzed to SubstItute another penalty for discharge -- even where the
9
dIscharge was for cause -- If the substItutIOn of penalty seems just and reasonable 111 the
CIrcumstances. The sweepmg manner m which this power IS expressed has been taken to mean
-
that the circumstances to be assessed by the arbitrator mc1ude post-termmatlOn eVidence of
rehabIlItatlon. See, e g, the comments of arbitrator 0 B Shlme m Re Canada Post Corp and
Canadian Union of Postal Workers (1995), UnpublIshed Award, at 7
The eqUIvalent wordmg of the Crown Employees' Collective Bargammg Act (CECBA) has been
held to grant the Gnevance Settlement Board the same sweepmg powers as those granted under
the Ontano Labour RelatIOns Act. SectIOn 19 (3) ofCECBA reads as follows
19 (3) Where the Gnevance Settlement Board determmes that a dlsclplmary
penalty or dIsmissal of an employee IS excessIve, It may SubstItute such other
penalty for the dIsclplme or dismIssal as It considers Just and reasonable 111 all the
Circumstances.
In Ministry of Community and Social Services v Ontario Public Service Employees Union,
(1992), 11 0 R. (3d) 558 (Ont. C A.), the OntariO Court of Appeal concluded that under the
above prOVlSlon the Gnevance Settlement Board had JUnsdlctlOn to determme If the penalty of
dismIssal was exceSSive even where just cause for dismIssal eXIsted. See also, Re the Queen in
Right of Ontario and Grievance Settlement Board (1980) 107 D L R. (3rd) 598 (Ont. DIV Ct.)
WhiCh reached the same conclusIOn.
-...-.---
10
VI.
- -
From the foregomg reView of the OntarIO Labor RelatIons Act and the Crown Employees'
CollectIve Bargammg Act, It seems eVIdent that where dismIssal IS Imposed m the form of a
dIsclplmary penalty, an OntarIO arbitrator or the Gnevance Settlement Board has statutory
JunsdlctIOn to subStltute a lesser penalty for a "just cause" dIsmIssal If m all the CIrcumstances It
appears Just and reasonable to do so The Circumstances to be assessed by the arbItrator mclude
post-termmatIOn eVidence of rehabIlItatIOn. So, for example, m Re Canada Post, supra, m WhiCh
the gnevor was dIsmissed for theft, It was held that under s. 60(2) of the Canada Labour Code,
whIch was identical to section 48 (17) of the OntarIO Labor RelatIOns Act, post-terminatIOn
eVidence of recovery from a gamblmg addiction was admIssIble. The reasons of the Supreme
Court of Canada m Cartier dId not apply, It was concluded, because the arbitrator had statutory
authOrIty to SubstItute a lesser penalty for a "Just cause" dlsciplmary dIsmIssal.
The SituatIOn IS not so clear when It comes to non-dIsclplmary dIsmissal for absenteeism due to
alcoholIsm. The cases that were brought to my attentIOn have gone both ways. In Re
Communications, Energy and Paperworkers Union of Canada and Bell Canada (1995),
UnpublIshed Award (Devlm), the arbitrator treated a case ofmnocent absenteeism due to
.;
alcoholIsm as If It were governed by the same prOVISIOn of the Canada Labour Code that
ArbItrator Shlme applIed to a dIscIplmary dIsmIssal 111 Canada Post, supra, See Bell at 13 17
On the other hand, m Re Case Corp and United Steelworkers of 4merica, Local Union No 2868
11
(1 CJ~6) Unpubhshed A ward (H D Brown), the arbItrator concluded that sectIOn 48 (17) of the
Ontano Labor RelatIOns Act dId not apply to shIeld a non-dIscIplmary dIsmIssal for absenteeIsm
- -
due to alcoholIsm from the deCISIOn of the Supreme Court of Canada In Cartier The statutory
authonty found m SectIOn 48 (17) of the Act, ArbItrator Brown smd, solely applIed to cases of
mItlgatlOn of a disCiplInary penalty See id. at 14-15 It dId not apply to dismissal for nmocent
absenteeIsm.
Smce dIsmissals for mnocent absenteeIsm were not shIelded by statutory authonty, Arbitrator
Brown concluded, the reasons of the Supreme Court m Cartier applIed to prevent arbitrators
from overturnmg these dIsmissals upon the basIs of "post-dIscharge eVIdence of Improvements In
medIcal condItIOns of employees as well as their rehabilItative efforts" Id. at 13 Arbitrators
were restncted to evaluatmg "just cause" for dIsmIssals for Innocent absenteeism due to
alcoholIsm upon the eVIdence before the employer at the time of the deCISIOn to dIsmISS See id
at 16-1 7
VII.
lt seems undemable that there IS reason to mterpret the statuto!) shield of sectIOn 48 (17) of the
Ontano Labor Relatlons Act -- and ItS parallels m the Crown Employees' CollectIve Bargammg
Act and the Canada Labour Code -- as restncted to mltIgatmg dIsCIphnaI) penaltIes mcludmg
~_. -
l2
dIscIplmary dIsmIssals These prOVISIons have been generally regarded as remedmllegIslatlOl1
respondmg to a deCISIOn of the Supreme Court of Canada m Port Arthur Shipbuilding Co v
- -
Arthurs, [1969] S C R. 85, 70 D L.R. (2d) 693 (S C C) In that case, the Supreme Court
concluded that a board of arbitration had exceeded ItS JunsdIctlOn when It substituted a lesser
penalty for a dlsClplmary dIsmIssal Referrmg to the management rights clause m the collective
agreement, the Court concluded that the task of the board was to determme whether the company
had proper cause for dIsclplme The board was not entitled to go further and determine whether,
havmg proper cause, the company should have exercised ItS power to dismISS the gnevors See
the dIscussIOns of Port Arthur Shipbuilding in Re the Queen and Grievance Settlement Board,
supra, at 602-3, and, Canada Post, supra, at 6 There seems to be lIttle doubt that the purpose of
sectIOn 48 (17) of the Act and ItS parallels m CECBA and the Canada Labour Code was to
statutonly reverse the decIsIOn in Port Arthur Shipbuilding by ensuring that arbitrators and
boards of arbItration possessed the power to mItlgate dIsciplInary penalties
It may well be, then, that dismissals for mnocent absenteeIsm are not protected from the reach of
Cartier bv any shield of statutory authonty In thIS event, once an arbitrator concludes that at the
tlme of dismIssal the employer had just cause to dIsmISS for mnocent absenteeIsm, the
arbItrator's jUnSdlctIOn WIll be exhausted. The arbItrator WIll exceed hIS or her JunsdIctIOn Ifhe
or she attempts to go on to determine whether to remstate the gnevor to employment based upon,
mter aha, post-termmatIOn eVIdence of rehablhtatlon. At the moment, however, I am not
prepared to make a defimtlve rulmg upon the pomt. ThIS aspect of the case was not fully
explored m oral argument. There may be some authonty other than the statutory authonty to
13
whIch 1 have been referred to sll1cld mnocent absenteclsm \..ases from these effects.
-
VIII.
Evcn morc troublIng IS the emgmatlc nature of dIsmissals for absenteeIsm due to alcoholIsm.
AlcoholIsm has been charactenzed as a dIsease of the wIll It can only be conquered by exerCise
of the willpower of the vlctlm. Because of tills, absenteeism due to alcoholIsm stands at the
borderlIne between culpable and non-culpable behaVIOr The fonner attracts dlsclplme, the latter
does not.
The cases reflect thIS emgma. In Cartier, the employer responded with dlscIplme to absenteeism
due to alcoholIsm \Vhen the case went to the Quebec Court of Appeal, however, MOlsm, J A.
mdlcated that he preferred to treat It as a non-discIplmary mnocent absenteeism case because
alcoholIsm was properly regarded as an illness. In the Supreme Court of Canada, L'Hereux-Dube
J mdlcated that she was indifferent to whether absenteeIsm due to alcoholIsm was treated as a
dlsclplmary or non-dlsclplmary matter, so long as just cause to dIsmIss was assessed as of the
tlme of dIsmIssal See id at para. 13
SllTIllarly m Bell Canada the employer responded with dlsclplme to the absenteeism of the
gnevor due to her alcoholIsm See id at 1-6 The arbItrator however, chose to treat the matter as
a non-dIsCIplmary dismIssal for lllliocent absenteeIsm, thus permlttmg her to consIder "the past
record of absenteeism and the hkelIhood of regular attendance 111 the future" fd. at 13 At the
14
same tIme, the arbItrator mvoked the substItutlOn-of-penalty provIsions of s 60(2) of the Canada
Labour Code to Justify consIdenng post-termmatlOn eVIdence of rehabilItatIOn. Id. at 16-17
All of thIS raises the questIOn whether dIsmissals for absenteeIsm due to alcoholIsm mIght
properly be considered to be dIsclplmary m nature for purposes of mvokmg the shield of
statutory authonzatIOn under sectIOn 19(3) of the Crown Employees' Collective Bargammg Act
or ItS eqmvalents m the Ontano Labour RelatIOns Act and the Canada Labour Code
ThIS IS a difficult question. The emgmatIc nature of absenteeism due to alcoholIsm mIght tend to
tIp the balance m favor of makmg thIS charactenzatIOn. So might the apparent absurdIty of
applymg the shIeld of statutory authonzatlOn to reinstate a rehabilItated employee who was
dismissed for theft caused by a gamblmg addictIOn or alcoholIsm but not to one who was
dIsmIssed for absenteeism due to alcoholIsm.
At the same time, I am aware that the polIcy reasons set forth by L'Hereux-Dube J m support of
her deCISIOn m Cartier might tend to tip the balance the other way It Will be recalled that these
polIcy reasons essentially were (1) To prevent the result of a dismIssal gnevance from varymg
accordmg to the time lag between gnevance and arbItratIOn, and, (2) to prevent the dIsmissal of
an alcoholIc employee from bemg overturned Simply because the shock of dIsmIssal was the only
thmg that mduced the employee to rehabilItate himself See id at para. 13
15
IX.
I am not, however, prepared at the moment to make a rulmg upon the above issue The Issue was
merely touched upon m the submiSSIOns of counsel upon the prelimmary obJectIOn. It seems to
me that the more prudent course to follow would be to admit the post-termmatlOn eVidence of
rehabilItatIOn and reserve until argument upon the ments the questIOn of the degree, If any to
WhiCh the post- termmatlOn eVidence of rehabilitatIOn should be relIed upon m my award. To thIS
extent, the prelImmary ObjectIOn IS dIsmissed.
Dated at Toronto, Ontano, thIS 15 day of Apnl, 1996
I
{