Loading...
HomeMy WebLinkAbout1980-0558.Burns.81-11-27 DecisionONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD 180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G 1Z8 -SUITE 2100 TELEPHONE? 416/598 - 0688 558/80 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (Mr. Gerald Burns) Grievor - And - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer Before: Prof. W. B. Rayner Vice Chairman Mr. I. Thomson Member Mr. G. Peckham Member For the Grievor: Mr. E. Baker, General Secretary Ontario Liquor Boards Employees' Union For the Employer: Mr. D. Brady, Counsel Hicks, Morley, Hamilton, Stewart & Store Hearings: November 10th and 1 4th, 11 2. This grievance results from the discharge of the grievcr on October 25th, 1980. The letter states that the reason for the discharge is events that gave rise to the grievor's.suspension dn October 8th, 19.80 and his record. The incident that gave rise to the grievor's suspension on October 8th, 1980, occurred on October 7th, 1980. There are really no facts in dispute with respect to this incident. Mr. Easterbrook, the Store Manager where the grievor worked, testified that on that day he and the grievor left for lunch at the same time. He expected the grievor to return from lunch at 1:00 p.m. The grievor did not return from lunch at 1:00 p.m. and, indeed, did not return for the rest of the afternoon shift. Mr. Easterbrook testified that he made several telephone calls to the grievor's home address. He said he received only busy signals. After some period of time Easterbrook called his superior and after discussion it was decided that Easterbrook should issue letter levying a one-day suspension, with pay, against the grievor. The authority of Easterbrook to levy a suspension was limited to one day. Further disciplinary action could result, of course, from the incident that gave rise to the one-day suspension levied by the Store Manager. Later that day Easterbook again attempted to contact the grievor to see if he was home so that he might deliver the letter of suspension to him. Some time near 5:00 p.m. Easterbrook talked to a person on the telephone at the grievor's residence. Easter-brook said that the voice of the person sounded very young. Easterbrook also testified that:sometine during the after- noon the Assistant Store Manager came in and told him that the grievor's common law wife had come into the store and indicated that the grievor would not be in because he was sick. Easterbrook also gave testimony with respect to the grievor's work performance. The grievor worked in the store as a Clerk IV. However, Easterbrook said that he did not feel that the grievor was ready for full responsibility in April of 1980. He said that the grievor was not sufficiently consistent with his cash records. He indicated that the grievor was not doing all of the work of a Clerk IV, but that he was doing all that he was being asked to do. He indicated that the grievor was co-operative but the problem with the grievor was inconsistency with respect to cash. In April Easterbrock sent a progress report on the grievor to Mr. Armstrong. That progress report reflects the testimony of Easterbrook before us. The progress report says: "His work has been adequate but not exceptional". At a further point the report states: "His work on cash is adequate but, again, his lack of concentration seems to cause him some problems in balancing his cash". 4. Finally the report concludes by saying: :"I regret to say that at this time I would hesitate to put him the position of responsibility which his present classification allows for". Easterbrook also testified .with respect to the grievor's attendance at the Store. He said that the grievor's attendance was much worse than other employees' attendance records in the Store. However, Easterbrook also indicated that the employees in his Store had a very good attendance record. The Company led evidence to show that the grievor missed 7 1/2 days due to sickness from the time that he commenced working in March of 1980 until the date of his discharge in October of 1980. In comparison, the average loss of time due to sickness for other employees in the Windsor area over that time span equaled slightly more than 4 1/2 days. Easterbrook said, however, that on the first two occasions when the grievor was sick, the grievor obtained doctors' certificates. Easterbrook indicated that he told the grievor that he did not need these certificates. Easter- brook did not question the grievor further with respect to sickness before the grievor was discharged. The grievor also gave testimony with respect to the incident of October 7th. His testimony does not conflict with that of Easterbrook. The grievor said that he went home at approximately 12:00 p.m. and that he felt terrible. He did not know what was wrong with him but he said that he had been feeling badly all morning. When he arrived at home he called his common law wife and asked her to telephone him at 12:45 p.m. He told her that he was sick. The 5. grievor said that the purpose of this call was to make sure that he - would be awake in time to go to work. The grievor said that he then sat back in his chair and some time later his foot must have nudged the telephone receiver as it had been dislodged while he was asleep. The next thing that he remembered was his wife standing over him shaking him awake some time around 3:30 p.m. He indicated to her at that time that he did not feel well and she took him to the emergency ward of a hospital. At that time the grievor had blood tests taken and these tests were filed with the Board. The tests, which also had been given to the Employer, indicated no problem. The grievor had been taking tranquilizers and decongestants. The grievor was taking tranquilizers because of a nervous condition and decongestants because of sinusitis. The grievor testified that the drugs did have some effect on him. For example, the grievor indicated that while he was at work and doing cash, he sometimes felt light-headed and questioned to himself whether he was actually fit to carry out the duties with respect to cash. The grievor said that he had several sleepless nights each week and that he often felt tired at work. If no other facts were pertinent, given the outline of that which occurred on the day in question, no discharge, or even discipline 6. could be upheld. However, there are further facts that need be explored. The grievor is an alcoholic. In 1978, the grievor who had nine year's seniority with the Employer, was terminated because of his alcoholism. The grievor had at that time a deplorable absenteeism record. A Board of Arbitration, chaired by Professor Swan, reinstated the grievor. The Board went some distance in deciding to reinstate the grievor because the Board decided to reinstate the grievor even though the grievor had not exhibited any resolution to overcome his alcohol problem. In reinstating the grievor, the Board established several conditions that need be met. These conditions are set out on pages 5 and 6 of the award and read:. 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 griever satisfies the medical consultants in that program that his alcoholism is under control, he shall be returned to employment 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 7. that absences clearly due to specific causes un- related 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. For various reasons the second and third conditions set out in Swan's award were not met. The grievor was reinstated but during his six month leave-of-absence the grievor did not enroll ' in a referral program. The grievor indicated that he felt that it was incumbent upon the Employer to enroll him in the program as the Employer does run such a referral program. The Employer did not refer the grievor to a referral program because clearly it was unhappy with the award issued by Professor Swan. The Employer in- dicated that it was, in fact, considering whether to seek judicial review of this award. In any event, the Employer reinstated the grievor to active duties in March without evidence that the grievor had satisfied medical consultants that his alcohol problem was under control. The grievor testified that sometime in February on his own initiative he entered into an alcohol referral program. He said that he maintained this program until his discharge in October of 1980. A letter from Mr. Dobson, the Director of the Connaught Clinic to Union counsel was filed as an Exhibit. In that letter the grievor is said to have engaged in a program which required individual weekly counselling, attendance at support maintenance groups each week, and 3. attendance at Alcohol Anonymous meetings for a trial period of at least two months. Dobson indicated that the grievor maintained his appointments and attended 70% of the support maintenance meetings: Dobson also said that the grievor also attended most weeks at A.A. meetings. In our view, the letter from Dobson clearly indicates that the grievor was maintaining contact and participating in the referral program. Although Yin Bradyattempted to discount the grievor's commitment because of the fact that the grievor only attended 70% of the group support maintenance meetings, we do not conclude that the grievor lacked the necsary commitment. Indeed, the grievor testified that he found the group sessions very difficult and not particularly useful to him, but even under those circumstances, maintained a 70% attendance record. The latter part of the letter from Dobson to Baker indicates that the grievor was making good progress from the time that he entered the program until October 30th, although there was some regression in the later part of September and October. The grievor was not questioned with respect to this last point made by Dobson, except by the Chairman. The grievor said that Dobson's comment referred not to the fact that he was becoming dependent again on alcohol but rather to the fact that his attitude was not quite so good as it was before. The grievor testified that he underwent divorce proceedings during the Summer, months. He indicated that the matter was finally finalized sometime in the Autumn. He indicated that this weighed Q heavily on his mind and caused him some further difficulty. However, the grievor was adamant that he was not using alcohol. In cross- examination by Mr. 'Brady, the grievor frankly admitted that he Had fallen off the wagon once but that had been the only time during the entire period. There was no evidence to indicate that the grievor missed any time at work because of this one slip. The grievor indicated that when he quit alcohol, as he put it, "cold turkey" he suffered some serious medical problems. He indicated that he went into convulsions and these convulsions raised a high level of anxiety in him. He said that he was afraid that further convulsions might ensue. As a result, and as a result of his sleepless nights, the grievor was prescribed tranquilizers. In some fashion, the dosage on these tranquilizers was doubled. The grievor said that he was not aware of this doubling of dosage, and indeed, his doctor was surprised that the dosage had been doubled. One assumes that the dosage had been doubled simply through inadvertence by either the doctor or the druggist. Mr. MacDougall, the Staff Relations Officer of the Employer, gave testimony. He indicated that the Disciplinary Committee of the Employer considered a number of things when the decision was made to finally terminate the grievor. The Committee considered that the grievor had been reinstated under a set of conditions and therefore the Committee looked at the conditions, together with interim reports by Mr. Easterbrook and the grievor's degree of absenteeism. Obviously the Committee referred to the culminating incident. 10. Although the grievor filed a written report as recuired by the Collective Agreement with respect to the incident, Mr'. macroputgall indicated that the Board was not much convinced by this report as it seemed very similar to excuses given by the grievor for absences prior to his reinstatement under the Swan award. However, it is important to note that there is not one shred of evidence before this Board to indicate that the Employer made any effort whatsoever to attempt to determine the validity of the reasons put forward by the grievor for his absence on the day in question. Counsel for the Employer indicated that there were several reasons for the discharge. Some reasons relate to the conditions, and other reasons are apart from them. In the first place, the Employer says that the condition of remaining in an alcohol abuse program was not met. We have already made comments on this, and in our view, the grievor clearly met the requirements set out in the Swan award by maintaining contact and participating in a referral program. Although it is true that the grievor went off the program after his discharge because of his anger at the Employer's actions, we are of the opinion that this lapse is not particularly important for two reasons. In the first place, his lapse occurred after the act of discharge. Although the lapse may have some bearing on whether a board should exercise discretion to reinstate the grievor, in the circumstances the employer can hardly rely on the lapse to justify the discharge which occurred before the lapse. More importantly, the grievor after a short period of time returned to the brogram and is still in the program at the 11. present time. The Employer also says that the grievor breached the-fifth condition set out by Professor Swan in that the grievor's absenteeism rate fell below the average for employees in the Windsor area. However, it is important to note that the condition permits the grievor to demonstrate that the absences were not due to alcoholism. The grievor attempted to provide evidence to Mr. Easterbrook as to why he was absent. He states that he did not lose time because of alcoholism but because of his anxiety state and his sleepless nights. Although it may perhaps be suggested that the grievor's symptoms were secondary symptoms of alcohol withdrawal, in the absence of any evidence to the contrary, and with the evidence given by the grievor as to why he was absent, we are not prepared to conclude that the grievor has violated the fifth condition set out in the Swan award. This then leaves the Employer with the option of attempting to establish discharge not for breach of condition as set out in the Swan award, but for normal just cause. The Employer attempted to do so on the basis that the culminating incident, taken together with the grievor's poor job performance and poor attendance record, justifies discharge. In the first place, we are not convinced that a culminating incident did occur. Although the grievor in his letter of explanation indicates that perhaps some action taken by Easterbrook would have been 12. warranted, and hence, would appear to be admitting that some incident occurred, on the evidence before us we find it very difficult to reach that conclusion. However, even if we do reach that concl-usion, we are of the opinion that the culminating incident is of an extremely minor nature. Moreover, the grievor's record taken together with that culminating incident, simply does not warrant the action taken by the Employer. From the time that the grievor returned to work . until his discharge, the grievor's absenteeism was admittedly in excess of the average of absenteeism in the Windsor area. However, it was not grossly in excess of the average and the grievor has testified, without contradition, as to the reason for his absenteeism. In each case, the absenteeism appears to be non-culpable. Although Mr. Brady based part of his argument on the concept of the right of the Employer to discharge even for innocent absenteeism, we cannot conclude that the period of time from the grievor's reinstatement until his discharge, and the absences therein, warrant the application of that principle. Even if one considers the grievor's absenteeism rate before the Swan award, that rate taken with the rate of absenteeis= after the grievor's reinstatement, would not justify discharge. In other words, the grievor simply was not absent enough after his re- instatement to permit the Employer to rely on the principle of dis- charge for innocent absenteeism. Moreover, reliance on the previous history of intolerable absences is much weakened because the grievor was absent for different reasons during the period of reinstatement, and at a much reduced rate. Moreover, we cannot conclude that the Employer can justify its actions on the basis of the grievor's job performance. Easterbrock in his testimony, and in his progress reports, showed some dis- satisfaction with the grievor's work. However, in his view, the grievor's work was basically adequate. It is true that he felt-that the grievor lacked sufficient concentration to be given all of the responsibilities of a Clerk IV, but ultimately the fact remains that he felt that the work was adequate. In our view, the Employer simply has not produced grounds to justify its discharge. It may well be that the employer was not happy with the award issued by Professor Swan. Whether this Board would have issued such an award is irrelevant. The award was issued by Professor Swan, and since it was not challenged by the parties, was binding upon them. In our view, the Employer made little or no effort to implement the spirit of the award and the conditions laid down by Swan. However, as Mr. Easterbrook said, the Employer is not a social agency and need not be a wet nurse. On the other hand, the Employer, given the set of conditions laid down by Swan, and the efforts of the grievor in that direction, must act with a certain degree of fairness. In our view, the grievor was making a legitimate effort to meet the conditions laid down by Professor Swan. His attendance record and work performance, even taken together, had not deteriorated to the point disciplinary action by the Employer was justified. Indeed, it is important to note that the Employer took no disciplinary action between the grievor's date of reinstatement and the grievor's date of discharge. Finally, the culminating incident, if one exists, is extremely minor in nature. In all of these cir- cumstances, we are of the view that the grievor should be reinstated with full back pay and no loss of seniority. W. B. Rayner, Vice Chairman . Thomson, Member Peckham, Member 14. However, one further point does cause some concern for the Board. The grievor under the Swan award had to remain in a referral program for a period of at least one year following his - return to work. Because of the action of the Employer in discharging the grievor, there is some doubt as to whether this condition has been met. The grievor simply did not remain at work for a period of one year due to the discharge. In our view, it is important that the grievor continue to recognize his overriding problem and continue to deal with it. Accordingly, although we reinstate the grievor with full back pay and no loss of seniority and benefits, it is our view that the grievor should remain in 4 referral program 1 for a period of at least one year following this second reinstatement. Accordingly, the Board award that it is a further condition of his reinstatement that the grievor maintain contact and participate in a referral program for at least one year following the date of this award. DATED at London, Ontario, this 27th day of November, 1981.