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HomeMy WebLinkAbout1982-0252.Saunders.82-11-23 DecisionGRIEVANCE SETTLEMENT BOARD ADVANCE COPY TO THE PARTIES: MINOR TYPOGRAPHICAL CHANGES MAT APPEAR IN THE PRINTED COPY TO BE DISTRIBUTED LATER. REGISTRAR 252/82 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (Mr. A. Saunders) Grievor and The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer Before: For the Grievor: For the Employer: Hearing: K. P. Swan Vice Chairman S. Hennessy Member G. Griffin Member E.3. Shilton Lennon, Counsel Golden, Levinson Barristers & Solicitors D. Brady, Counsel Hicks, Morley, Hamilton, Stewart & Stone Barristers & Solicitors August 12, 1982 2 This is an arbitration which, in ordinary circumstances, would call for the shortest possible award. Unfortunately, a substantial amount of this Board's most controversial jurisprudence is involved in the outcome, and we therefore find it necessary to deal with it at some greater length. The Grievor was, at the time of his discharge on May 29, 1980, a long-term employee of the Liquor Control Board of Ontario, working as a. Clerk 3 in Ottawa. He was also a long-term alcoholic, with a record of discipline for alcohol-related offenses dating back to 1969, but becoming particularly intense since 1977. The critical phase in his alcohol problem folio' wed closely on the death of his wife in 1976 in circumstances which need not be detailed here but which undoubtedly had a devastating effect on him, as they would have had on anyone. Following suspensions in 1977 and in 1978 for alcohol-related employment problems, he was discharged for being under the influence of alcohol while at work on July 21, 1979. During the period leading up to his discharge, he had been hospitalized for detoxification, he participated in the Employer's Employee Assistance Program, he attended Alcoholics Anonymous meetings and he had psychological assistance at the Royal Ottawa Hospital; all of this was without success. Following his discharge in 1979, however, he made a concerted effort to bring his alcohol problem under control. He was eventually sufficiently successful in this respect that the Employer was persuaded to reinstate hitn in employment. As a condition of this reinstatement, the 3 Grievor signed two documents. The first (Exhibit 11) was signed on November 7, 1979 and reads in its entirety as follows: With my reinstatement to the L.C.B.O., I do hereby relinquish any rights I may have had to grieve in the future with respect to alcohol-related discipline. The second document was a lettr of reinstatement dated December 15, 1979 (Exhibit 12) and includes the following paragraph: In the future, management reserves the right to dismiss, without recourse by Mr. Saunders, for any alcohol-related misdemeanor. The Grievor signed this document under the notation "I accept the foregoing conditions". The Grievor worked successfully until May of the following year, but during his annual leave in the week of May 19-24, 1980, he began drinking again. When he returned to work, his supervisors suspected that his problems were recurring, but it was not until May 29, 1980 that he gave them clear evidence of that fact by appearing at work under the influence of alcohol. He was subsequently dismissed, and his attempts to reopen the issue of his dismissal through the grievance procedure were met with the assertion that he had conclusively waived any rights he may have had to pursue the matter further as a condition of his reinstatement in 1979. 4 The Grievor was hospitalized again, and once again became an out-patient at the Alcohol and Drug Addiction Program of the Royal Ottawa Hospital. This time, the treatment and the Grievor's efforts have been much more successful. By agreement of both counsel, we received a letter (Exhibit 1) dated July 28, 1982 from Dr. N.N. Nayar to Ms. Lennon, the Union's counsel, reviewing the Grievor's treatment and giving a positive prognosis for the future. Dr. Nayar's letter is, if we may say so, a model of the kind of assistance which conscientious members of the medical profession can render to the arbitration process. It is complete, candid and to the point. He does not, reasonably, suggest that the Grievor is cured, or even that there could be such a thing as a cure for the Grievor's problems. He does, however, point out that the Grievor has had two years of sobriety and that the chances of relapse diminish with the increase in the length of the period away from alcohol. As we have already pointed out, the Grievor met with no success in attempting to grieve his 1980 discharge. In due course, however, the matter was raised with the Ombudsman of Ontario, since the Employer in this case is a Crown Agency. Through the intervention of officials of the Ombudsman's Office, the Employer assented to a suggestion by the Ombudsman that the matter should proceed to arbitration, and that it should not rely upon any "waiver" signed by the Grievor, at least not in any jurisdictional sense. It is in those circumstances that the matter comes - before us for a final and binding disposition. 5 A case of this nature creates an excruciating dilemma for this Board. On the face of it, the Grievor is the best possible candidate for reinstatement. The medical advice before us, which is the most complete and reliable we have ever seen, and probably the most reliable ever presented to this Board, indicates the strongest possible prognosis for continued alcohol-free experience with the Grievor. So does the Grievor's record in alternate employment with the Corps of Commissionnaires in Ottawa. This Board's jurisprudence, developed in a long series of cases . beginning with Re Cook and Ministry of Labour, 115/78 (Swinton) has recognized the admissibility of post-discharge rehabilitation as proper evidence of a prognosis for future attendance at work and satisfactory performance. The Cook decision has been upheld by the Courts of this province as an appropriate exercise of this Board's jurisdiction, and the Cook decision has been followed in other cases since: see Re Burns and L.C.B.O., 120/78 (Swan); Re Devlin . and Ontario Housing Corporation, 331/80 (Jo'liffe); Re MacLean and L.C.B.O., 556/80 (Prichard); Re Wells and L.C.B.O., 2/82 (Verity). Those cases establish that alcoholism is to be viewed as an illness rather than as culpable behaviour in itself, and that, indeed, the effects of alcoholism may be a mitigating factor in certain cases of otherwise culpable conduct: see Re Cook, supra. Thus the cases assimilate alcoholism cases to cases of innocent inability, such as through illness or disability, to perform the functions of employment. The important factor is the prognosis for the future usefulness and efficiency of the employee. -6 While the Grievor's case has gained considerable weight simply because of the delay which occurred because of his previous "waiver" and the length of time involved in the intervention of the Ombudsman, that weight still goes to precisely the issue which is central to a determination of whether he should be reinstated: the likelihood of his future reliability as an employee. Because of that delay, the Grievor is able to make a case that is much stronger, for example, than that advanced in Burns, a decision in which the present Vice Chairman participated, and possibly than that presented in several of the other cases cited above. Were this the occasion of the first discharge of the Grievor, his case would be irresistible. Unfortunately, however it is not. The other aspect of the dilemma which this case presents to the Board is that all of the jurisprudence mentioned above depends upon conditional reinstatement, and in every case one condition has been that the Grievor demonstrate his ability to continue as an effective employee by working for a period, of variable duration from case to case, free of any alcohol-related employment offenses, including alcohol-related absenteeism. The Board has always intended those orders to be final, in the sense that they have been an offer of a last chance to an employee to demonstrate a continued usefulness to the Employer. Employers do not have any obligation to function as social service agencies; they are entitled to expect employees to be productive and reliable, and ought not to have to carry employees who cannot meet that standard of performance. Nor do we think that any different considerations ought to apply to an Employer 7 merely because it is a government agency or, in the case of the present Employer, has such a particular connection with the sale and consumption. of alcohol. The Board's jurisprudence has been based upon the arbitral opinions related to innocent absenteeism, and a characterization of alcohol as an illness rather than as culpable conduct. As in the more purely medical cases of innocent absenteeism, therefore, the central concern is the prognosis for the employee. If, however, these decisions are designed to be "one last chance", it is vital to the institutional concerns being advanced by the Board that a last chance never be repeated; to do so runs the risk of bringing the entire jurisprudence into disrepute. In addition, while we do not wish to engage in the all-too--common habit of arbitrators of asserting some specialist knowledge of the disease of alcoholism, what reliable common knowledge about the disease is available indicates that the rehabilitation of alcoholics would not be improved, and indeed might be defeated by the knowledge that beyond the present last chance there may be yet another last chance to be rehabilitated; the conventional wisdom is that it is only when faced with the choice between rehabilitation and a hopeless future that most alcoholics find the strength to recover: see Re British Columbia Telephone Company and Telecommunication Workers' Union (1978), 19 L.A.C. (2d) 98 (Gall). The dilemma, of course, must be resolved. The Employer's argument is that the Grievor has had his chance, and that the waiver which he signed is no different from the condition customarily inserted in the 8 Board's decisions on similar cases. The Employer, in reinstating the Grievor, therefore, simply replicated what it suspected the Board might do, and the agreement which was signed by the Grievor ought to be given the same weight as the Board would give to one of its own awards. On an institutional level, we agree with this submission. In most cases, we would assert that institutional interest as paramount over a Grievor's demonstration that he would benefit from yet another chance. But our jurisdiction under the statute requires us to exercise our discretion in discipline cases in accordance with the principles of justice and equity, and on a human level it would be unjust and inequitable not to recognize the substantial achievement of the Grievor toward containing and controlling an illness which has had such a debilitating effect on his life in the past. Once one accepts that evidence of post-discharge rehabilitation is admissible, the weight of that available to the Grievor is overwhelmingly in favour of reinstatement, not on the basis that a lesser penalty than discharge should be substituted, but on the basis that a disability has been brought under control and that the employee is again available to function effectively. To ignore the fact of this demonstration would not, in our view, be just or equitable. We have therefore decided to reinstate the Grievor in employment. This decision should not, however, be viewed as having any precedential value whatsoever for other cases. Our decision turns entirely on the unusual and probably irreproduceable facts of this case, and the 9 extended delay in the grievance process which gave the Grievor an opportunity to demonstrate real and substantial recovery. We have no doubt that had we heard the present grievance within the usual period of time that it takes to process a case to arbitration, we would have dismissed the grievance on the basis of the institutional concerns we have already set out above. This is therefore very much a unique case, and ought not to be considered as any departure from the Board's earlier jurisprudence. We turn finally to the issue of compensation for the time lost due to the discharge. In this regard, the Grievor cannot have it both ways. He has benefited from the extended period between discharge and arbitration by having an additional opportunity to demonstrate recovery; he cannot also expect to be compensated for that period as well. Therefore, our award is that the Grievor should be reinstated in employment with the Employer within 14 days or such other period as may be mutually agreed after the date of this award, and shall be treated for all purposes as if he had been on a leave of absence without pay from the date of his discharge until his return to work. Needless to say, the condition attached to reinstatement in other cases will have to be added here too: any further alcohol-related employment misconduct will destroy the foundation of this award, and will be grounds for discharge. Should the parties have any difficulty in implementing this decision, we will remain seized to the extent necessary to assist them. - 10 - We wish to thank Mr. Brady and Ms. Lennon for their assistance and courtesy during the course of our deliberations in this matter. DATED at Toronto, Ontario this 23rd day of November, 1982. K. P. Swan Vice Chairman S S. Hennessy Member " I dissent" (see attached) G. Griffin Member /lb 7:3560 DISSENT Imola rmilpectfully disagree with the majority decision in this case. join with the other BoardMEgbers in recognizing Mr. Saunders' praiomorthyeffmts in dealing with his problem of alcoholism and wish him czntinued suaxss in that regard. Howvver, notwithstanding the foregoing comments, I consider the decision to rrrovide the grievor, in the instant case, with a further "last chance" to ble well inta.mtkred but ill advised. As indicated on Page 7 of the award "the conventional wisdom is that only when fiwxd with the choice between rehabilitation and a hopeless future that post alcoholics find the strength to recover", see RE: B.C. Tel and Telecomurdcaticrs Worker's Union (1978), 19 L.A.C. (2d) 98 (Gall). In my opinicn, the granting of a further "last chance" in this case, flies in the face of such informed thinking and represents an undesirable pleomist for similar cases in the future. Addithrially, such "further last chances" may negatively affect the future relationship between the parties involved and seriously discourage the practice of formulating such "last chance" arrangements within the confines of the grievance procedure. In my (pinion, properly have been dismissed. such considerations dictate that this grievance should G.K. Griffin Member