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HomeMy WebLinkAbout1980-0556.MacLean.81-06-09 DecisionGRIEVANCE SETTLEMENT BOARD ADVA n r TO THE PARTIES: MINOR TYPOGRAPHICAL CHANGES MAY APPEAR IN THE PRINTED COPY TO BE DISTRIBUTED LATER. REGISTRAR 9'/- 0/-6 556/80 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mr. John MacLean - And - The Crown in Right of Ontario (Liquor Control Board of Ontario) Before: For the Grievor: For the Employer: Hearing: Prof. J.R.S. Prichard Vice Chairman Mr. G. Peckham Member Mr. I. Thomson Member Mr. A. M. Heisey, Counsel Blake, Cassels & Graydon Mr. P. Moran, Counsel Hicks, Morley, Hamilton, Stewart&Stonie May 25, 1981 - 2 - In this case, the grievor alleges that he was unjustly dismissed. At the time of his discharge in October, 1980, the grievor was employed by the Liquor Control Board of Ontario as a Clerk at Store 397. The grievor was dismissed as a result of an incident at the Store on October 3, 1980. The employer alleges that the grievor was intoxicated while at work on that day and that based on the grievor's entire work re- cord the appropriate disciplinary response was dismissal. The grievor denies having had anything to drink either in the twelve hour period prior to coming to work on October 3 or while at work that day. In the result, there is a major factual dispute between the parties which we must resolve prior ateness of the penalty. In have considered and weighed only a brief summary of the to considering the appropri- resolving this dispute, we all of the evidence although evidence is presented below. II The employer's case is based on the evidence of four witnesses: Leo Cuellette (Assistant Manager), Roy Gooding (Store Manager), Harry Lavasseur (a Clerk 4 in charge of the grievor's shift on October 3), and Janice Gibson (the cashier on the grievor's shift on October 3). Each of these 'witnesses observed the grievor between 2:00 p.m. and 3:40 p.m. on October 3 and each concluded that he 3 had been drinking. Mr.Ouellette saw the grievor at about 2:15 p.m. which was 15 minutes after the start of the grievor's shift. Based on the grievor's slurred speech, the smell of alcohol on his breath, and his general demeanor, Mr. 01.111ette concluded that the grievor had been drinking. During a vigorous cross-examination, he described himself as "positive" that the grievor had been drinking. After speaking to the grievor, Mr.Ouellette reported his observa- tions to Mr. Gooding, the Store Manager. Mr. Gooding also had a conversation with the • grievor between 2:15 and 2:30 p.m. during which the grievor told Mr. Gooding that he had had an accident the night be- fore while out with a girl which had resulted in an injury to his elbow which had necessitated treatment at the hospital during the previous night.. During this.conversation, Mr. Gooding concluded that the grievor had had "a few drinks before coming to work" and that he was still suffering from the night before". Mr. Gooding described the grievor as "glassy-eyed" and said that his speech was slowed down and hazy in contrast to his usual "sharp" manner. Subsequent to this conversation, Mr. Ouellette told Mr. Gooding of his conclusions concerning the grievor. However, Mr. Gooding decided to wait to see if the grievor's condition improved during his break which was scheduled for 3:00 p.m. He explained that his delay in dealing with the situation grew out of his concern that any disciplinary act 4 he took against the grievor might lead to very serious consequences since the grievor had previously received a "final warning" on his record. As Mr. Gooding put it, he wanted to give the grievor "every possible break". At 3:00 p.m. the grievor left the store on his break before Mr. Gooding had a chance to speak to him. When he returned about 3:30 or 3:35 p.m., Mr. Gooding was. waiting for him at the front door. The grievor was soaked as a result of pouring rain. At this point, Mr. Gooding smelled alhohol on the grievor's breath, observed his glassy eyes, described his stance as weaving and thought his mind was "befogged". Mr. Gooding told the grievor that he had been drinking, that it was necessary to suspend him for one day and that he must go home immediately. The grievor neither denied nor confirmed the accusation at the time. The one day suspension is the maximum penalty a Store Manager may impose. The LCBO's practice is to make all final decisions concerning discipline at head office. The suspension is in effect a suspension pending investiga- tion. At the conclusion of the investigation, it may be withdrawn, confirmed, increased or substituted for with a different penalty. In this case, the decision was sub- sequently taken to discharge the grievor as a result of this incident and his prior work record. Mr. Lavasseur first saw the grievor at about 2:15 p.m. and concluded that he had been drinking. He based this on the grievor's mannerisms and speech, his flushed face and his walk. Mr. Lavasseur reported his observations to the Store Manager, Mr. Gooding. Mr. Lavasseur also saw the grievor when he returned from his break at about 3:35 p.m. He described the grievor's condition as having "deteriorated a bit" by then and that "he wasn't coming down". Ms. Gibson first observed the grievor at the start of the shift at 2:00 p.m. As he signed the register his face came within 1-1- feet of hers and she smelled liquor on his breath. She said "oh, Jack" and shook her head at him as a comment on his behavior. She also saw him when he returned from his break and described him at that point as "further flushed" and smelling even more strongly of alcohol. It should be stressed that both Ms. Gibson and Mr. Lavasseur are friends of the grievor and fellow members of the bargaining unit. In particular, Ms. Gibson said she had been drinking with the grievor at least 15 times over the past six years and knew him well as a friend. Both of them testified before the Board under subpoena. III The grievor's story puts his behaviour of October 3rd in a different light. He testified that on the evening of October 2nd, he was visiting with friends in his apartment building and that between 10:00 p.m. and 1:00 a.m. he had five or six beers. When they ran out of beer, he went downstairs to get more from his apartment and while return- ing by running up the stairwell, he slipped and fell, in- juring his elbow. He went by taxi to Scarborough General Hospital where he arrived at about 1:30 a.m. He was treated at the hospital, receiving four stitches, a tetanus shot, four 222s and a prescription. He didn't fill the prescription until October 4. As a result, it does not ttgure in these events. He then took a taxi home arriving at about 3:30 a.m. He sat up until about 5:00 a.m. before retiring to bed. As a result of the pain, he slept fitfully and rose between 10:00 a.m. and 10:30 a.m. He testified that he felt as though he got only about half an hour's sleep during the night as the pain caused him to toss and turn. He took two 222s before going to bed and took the other two at about noon. After rising, he ate breakfast and reported to work shortly before 2:00 p.m. At this point, he described himself as very tired and in some pain. He testified that he had nothing to drink between the time he went to the hospital (1:30 a.m.) and the time he went to work (2:00 p.m.), a period of more than 12 hours He also denied consuming any alcohol while at work or while on his break between 3:00 and 3:30 p.m. He explained that while on his break, he went to see a waitress friend at a nearby licenced restaurant but that he confined his con- sumption to a bowl of soup and a cup of tea. 7 The grievor reconciles the observations of management's witnesses and his story by suggesting all the symptoms except the alcohol smell on his breath were caused by a combination of fatigue, pain and the 222s and that the smell of his breath was the residue of his beer drinking the night before. IV In deciding whether or not to believe the grievor, we are inevitably forced to assess the credibil- ity of the witnesses who appeared before us. In the case of the four Witnesses for the employer, we found each of them to be credible. Both Mr. Ouellette and Mr. Gooding seemed genuinely reluctant to have had to respond to the grievor's state and did so only in the absence of an alter- native. Similarly, the grievor's two friends and fellow -workers seemed aware of the consequences of their testi- mony for the grievor, but felt compelled to testify, although with sadness, as to what they had observed. Each of the witnesses was without doubt as to the essence of his or her evidence - that the grievor had been drinking. In contrast, unfortunately, we cannot, on balance, believe the grievor. A number of factors have led us to conclude that he has a drinking problem requiring treat- ment even though he testified that he doesn't think he does. This conclusion is based on inferences we have drawn from the totality of the grievor's conduct and re- cord. In particular, a number of facts lead us to our conclusion. First, as early as 1977 when the grievor was suspended for drinking on the job, it has been suggested that he has had. a drinking problem which would 'warrant treatment. Second, he has been a good employee apart from problems of absenteeism, a problem not uncommon in the case of some- one with a drinking problem. Third, by his own admission, the grievor's drinking had affected his work, causing him to sleep poorly and often be tired. Fourth, again by his own ad- mission (and to his credit) the grievor has been regularly, attending Alcoholics Anonymous for four months in an attempt to reduce and control his drinking. Fifth, the grievor lost his driver's licence in 1976 on the basis of various offences including driving while under the influence of alcohol. None of these facts alone are sufficient to conclude that the grievor has a drinking problem. How- ever, in their totality and in the face of four credible witnesses, we find ourselves unable to believe the grievor's evidence that he had not been drinking prior to coming to work on October 3rd or while on his break at 3:00 p.m. With some sadness, we find ourselves driven to conclude that he had consumed a substantial amount of alcohol after 1:30 a.m. and that as a result, a disciplinary response was called for. V In determining the appropriate penalty in a case such as this, the grievor's entire work record is of course relevant. This record was summarized in Exhibit 5 as follows: January 1977 May 1977 November 1977 -written warning,re not reporting promptly when going to be absent from work -annual rating report poor re punctuality and attend- ance -suspended 2 days re drinking while on duty -required to contact Dr. Sinclair June 1979 - written warning re absent- eeism July 1979 - suspended 5 days re failed to report -final warning January 28, 1980 - 10 day suspension - left without permission At the same time, it must be said that both the evidence and various appraisal reports support the proposition that apart from the above incidents and some difficulties concerning absenteeism, the grievor has been a good employee who shows considerable initiative. The above summary makes reference to the grievor's being required to see the LCBO's Medical Director, Dr. Sinclair in 1977. This arose because the employer suspected - that the grievor's drinking was intruding on his work. The griever saw Dr. Sinclair who reported: - 10 - Re: MacLean, John Bernard, Store No. 397, Toronto I saw the above mentioned to-day as your letter of November 8, 1977 requested. Mr. MacLean denies any alcoholic problem and declines any help offered. I am very doubtful about this individual and advised him very definitely re any further misuse of alcohol. This attempt at assisting the grievor was taken no further, perhaps not surprisingly given the grievor's attitude to- ward his alleged problem. The LCBO has had an Employee Assistance Programme (EAP) since at least 1975 which is designed to assist employees in treating health, social and behavioural problems including alcohol abuse. While initially this was a plan designed and implemented by the employer, in 1980 the Union agreed to make the EAP a mutual obligation of the parties. It is described fully in a document dated August 21, 1980 and titled "Employee Assistance Programme". This programme now represents a joint effort to meet the problems of employees which require treatment and which hold the prospect of rehabilitating employees. Despite the objections of counsel for the employer, we have concluded that in this case, it is appropriate to reinstate the grievor to his position of employment upon certain conditions including that the grievor embark on a programme of rehabilitation consistent with the goal of the Employee Assistance Programme. This will require the grievor to recognize frankly the nature of his problem and to resolve to overcame it. At the hearing, he indicated his willingness to do so and we believe he .should be given that opportunity. In doing so, we recognize that this will impose certain costs on the employer. There is the risk that the grievor will not succeed and that the employer will be faced with the need to discharge him again. In the meantime, he will require closer supervision than normal to ensure that he has reformed himself. Furthermore, the employer is very conscious of its public image and is understandably reluctant to run the risk of appearing to condone alcohol abuse. However, despite these costs, we believe the potential benefits of a conditional rein- statement are greater. It will provide the employee with a final opportunity to enjoy the benefits of a job, the joint resources of the employee and the Union and the support of his friends and fellow workers in trying to overcome his problem. If successful, the LCBO will again have a first-rate employee and a man's career will have been saved. We do not believe the costs in this case justify denying the grievor this last chance. We should stress, however, that our conclusion might well be different in a case which crises following the mutual commitment to the Employee Assistance Programme. If we had a case in which there were evidence that an employee had refused to take advantage of the resources - 12 - of the EAP, it would be difficult to conclude that the employee warranted another chance. While in this case, the grievor did not welcome Dr. Sinclair's offer of assistance, he has shown his willingness to try to help himself by his attendance on a voluntary basis at Alcoholics Anonymous. In sum, a demonstrated willing- ness to try is an essential precondition to a conditional reinstatement and prior co-operationwiththe new EAP would in most cases likely be the acid test of that willingness. VI Our decision, therefore, is that the grievor should be reinstated to his position as a Clerk on the following conditions: (1)The grievor shall not receive any compensa- tion or benefits for the time he has been off work since his dismissal; (2)The grievor shall not receive any compensa- tion or benefits for any time following the date of this award during which he is unable to work as a result of his treatment for alcohol abuse; (3)The grievor, the Union and the employer shall meet forthwith on the receipt of this award to determine an appropriate course of treatment for the grievor 's drinking problem. This treatment programme should be consistent with the terms and spirit of the Employee Assistance Programme. If the parties are unable - 13 - to agree to a course of treatment within 30 days of the receipt of this award, either party may ask this Board to decide on a treatment programme; (4)If the grievor fails to comply with the agreed course of treatment, he shall be dismissed from employment; (5)If the grievor commits any alcohol related offence including absenteeism related to drinking within the next three years, he shall be dismissed from employ- ment; (6)The grievor shall comply with any reason- able reporting requirements in order to demonstrate his compliance with the course of treatment and to verify that any absences from work are unrelated to alcohol. This may include, but not necessarily be limited to, - utilization of the Q-11 report form. Any dispute as to the reporting requirements may be brought to us for decision; (7)The grievor shall be reinstated in his position immediately after a course of treatment has been agreed to and after the period of time, if any, that is required by the treatment programme before a return to work is appropriate. We will remain seized of this matter in the event tat there is any dispute about the conditions attaching to the grievor's reinstatement. - 14 - Finally, we wish to thank Mr. Moran and Mr. Heisey for their able assistance in this matter. DATED at Toronto this 9th day of June, 1981. J.R.S. Prichard Vice Chairman "I concur" - G. Peckham G. Peckham Member "I concur" I. Thomson I. Thomson Member /lb