HomeMy WebLinkAbout1978-0120.Burns.79-06-07 DecisionONTARIO
CROWN EMPLOYEES
GRIEVANCE
SETTLEMENT
BOARD
180 DUNDAS STREET WEST. TORONTO. ONTARIO. M5G 1Z8 - SUITE 2100 TELEPHONE' 416/598- 0688
120/78
IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
FlIF the Grievor:
For the Employer
Hearing:
Mr. Gerald Burns
- and -
The Crown in Right of Ontario
Liquor Control Board of Ontario
Professor K. P. Swan Vice-Chairman
Mr. E. A. McLean Member
Mr. H. Simon Member
Mr. Gerald Burns
Liquor Control Board of Ontario
Mr. C. Morley,
Hicks, Morley, Hamilton
1201 Royal Trust Tower
Box 371
Toronto-Dominion Centre
Toronto, Ontario
April 9th, 1979
Suite 2100
180 Dundas St. W.
Toronto, Ontario
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The facts of the present case are relatively straightforward,
although the surrounding circumstances relating to the operation of
this Board present some difficulties. The grievor is a nine year
employee of the Liquor Control Board of Ontario, who was at the time
of his discharge on April 28, 1978 employed at Store Number 33 in
Windsor, Ontario.
The grievor represented himself at the hearing, and, as is the
Board's practice in such circumstances, we made every effort to ensure
that he had full opportunity to cross-examine witnesses and to make
his argument; Mr. Morley, on behalf of the Employer, also extended
the grievor every forbearance in the presentation of his case.
Unfortunately, the evidence against the grievor was overwhelming,
•
and he was unable to counter the testimony against him with any
solid evidence.
The Employer's case reveals to our satisfaction, on the .balance
of probabilities, that the grievor suffers from alcoholism. He had a
deplorable absenteeism record, none of which could be directly ascribed
to illness of a specific nature, and there were incidents in which
alcohol was directly involved. The grievor was absent 14 days in
1975, 191/2 days in 1976, and a number of days too great to tally in
1977. There were a number of warnings issued, some disciplinary action,
and a culminating incident occurred on April 6 and 7, 1978 which involved
the grievor reporting to work under the influence of alcohol on April 6,
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being offered April 7 off to recover, refusing the offer and then not
reporting for work on April 7: As we view this case, little would be
served by recounting the evidence; suffice it to say that we are
satisfied that the Employer had just cause to take disciplinary action
against the grievor at the material time.
We thus turn to the penalty of discharge, and whether that
penalty was just and equitable in all the circumstances. The evidence
reveals that the Employer attempted to put the grievor on its own
mandatory referral program for alcoholism. The grievor, in the event,
did not take advantage of this program but, apparently after a crisis
of some sort, was admitted to Metropolitan General Hospital in Windsor
in November, 1977. On his return ,to work in December, he had a brief
period of satisfactory service prior to renewed difficulties culminating
in his discharge.
The Board does not in any way fault the Employer for its treatment
of the grievor, but we consider it unfortunate that no way could be
found to help an employee in such a predicament. There is no doubt
that arbitral jurisprudence in general, and the decisions of this Board
in particular, have always viewed alcoholism as an illness and not as
intrinsically reprehensible conduct. Given that absences due to illness
are generally considered blameless, there is scope to treat the grievor
not as a malefactor but as an employee deserving of compassion and
assistance.
A review of the Board's jurisprudence, however, reveals a practice
of extending extraordinary consideration only to employees who recognize
the seriousness of their condition and are clearly resolved to overcome
it. The grievor did not exhibit any such resolution. His testimony was
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calculated to minimize his condition, to shift blame and to refuse
to recognize his need for external assistance. We were therefore
not particularly optimistic about his chances for rehabilitation at
the time of the hearing.
On the other hand, the grievor has considerable seniority and
was, prior to the onslaught of his present difficulties, well regarded
by his supervisors. It is incompatible with a view of alcoholism
as an illness to blame the grievor for a failure to recognize his
problem and resolve to conquer it; to do so is to turn a symptom
of the illness into an indictment. We would, therefore, in light of
the nature of his problems and his previous good service, be
prepared ordinarily to exercise our discretionary authority under
s. 18(3) of the Crown Employees Collective Bargaining Act.
The apparent obstacle in our way is the decision of another
panel of this Board, written by Professor Katherine Swinton, in
Re Cook and Ministry of Labour, 115/78, Which is now the subject of
an application for judicial review by the Employer to quash the
reinstatement of the grievor subject to certain conditions relating
to his alcoholism. On the one hand, we do not wish to be seen as
commenting on the propriety of a decision of the Board which is now
subject to judicial review; on the other hand, the business of this
Board cannot stand still merely because a party is challenging its
jurisprudence.
In our view, the Cook decision is in line with the Board's
previous jurisprudence and is a logical development from it. The
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decision which we propose to make, since we have no evidence before us
on which we could find that the present grievor has manifested the
sincere desire for rehabilitation found by the Board in Cook, must go
farther even than that decision. We must therefore assume the risk that,
if Cook is found to be an excess of jurisdiction on some of the grounds
advanced on the application for judicial review, this decision will also
be subject to a similar attack. That is, however, a risk which we
think we must assume if the Board is to continue to function at all.
In our view, the present grievor deserves another opportunity,
for the reasons stated above, to rehabilitate himself. We saw no
evidence that he could do so by himself, and so we think it proper in
the exercise of our remedial jurisdiction to enlist the resources of the
Employer to assist him. We have therefore decided on the following
disposition of the case:
1.The grievor is reinstated as of the date of this award
in the employ of the Liquor Control Board of Ontario, without
compensation for the time lost due to his discharge.
2.The grievor's reinstatement is to the status of a leave
of absence without pay or benefits for a period of six months.
This status entitles the grievor to access to the Employer's
mandatory referral program.
3.If at any time during this, six month period the grievor
satisfies the medical consultants in that program that his
alcoholism is under control, he shall be returned to employment
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at a store in the Windsor area at the salary and
benefit level with his seniority as accrued up to
the time of his dismissal, subject to the conditions
set out below.
4.The grievor must maintain contact with
and participate in the referral program, as required
by the medical consultants of that program, for at
least one year following his return to work.
5.If over a one-year period following his
return to work the grievor's absenteeism rate falls
below the average for employees in the Windsor area,
the grievor's employment shall terminate unless he
can demonstrate that absences clearly due to specific
causes unrelated to his alcoholism were the cause of
his failing to meet this condition.
6.Nothing in this award affects the Employer's
right to discharge or otherwise discipline the grievor
for supervening just cause, either during or after
the one year period prescribed above.
We regret the specificity of this award, but it represents
the only circumstances under which we are prepared to exercise our
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remedial jurisdiction on the grievor's behalf. Within these closely
circumscribed limits, we are of the view that the grievor deserves
one more chance if he wishes to avail himself of it.
Dated at Toronto, Ontario this 7th day of June, 1979
K. P. Swan, Vice-Chairman
I concur
E. A. McLean, Member
•
I concur
H. Simon, Member