HomeMy WebLinkAbout1976-0062.Moss.77-04-19CROWN EMPLOYEES
GRIEVANCE SETTLEMENT
BOAR0
I’ ‘416 9644426 ” Suite 405
77 Btoor Street Yes;
TORONTO, Ontario
MS.5 lM2
IN THE NADER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: Mr. P. Moss
And
Liquor Control Board of Ontario
Before: D. M. Beatty Chairman
M. Gibb Member
S. R. Hennessy Member
For the Grievor:
Mr. M. Levjnson, ~Golden-Levinson
For the Employer:
Mr. C. Morley,
Hicks, Morley, Hamilton, Stewart & Storie
Hearings:
December 13; 1976
March 17, 1977
April 4, 1977
Suite 405, 77 Bloor Street West
Toronto, Ontario.
.
2.
On June 8, 1976 the Liquor Control Board of
Ontario dismissed the grievor, Mr. Paul Moss, from its
employment.
(Exhibit 2) because of the grievor's failure, on May 21, 1976,
to report as to his availability for work on Saturday March 22,
1976, because of his failure to produce a "Q-11" medical
certificate for certain absences which occurred immediately
preceding that date, and because of the deficient overall
attendance record that he had maintained over a rather
significant duration of his employment history.
grievance with this Board, Mr. Moss has put in issue the
propriety of the employer's action and by it he seeks to be
reinstated, with full compensation, to his Clerk 3 position.
The issue so joined, the parties adduced evidence and
presented their arguments over the course of three days of
hearings.
It did so, according to its letter of termination,
In filing his
However, and the protracted nature of these
proceedings notwithstanding, the circumstances giving rise to
this grievance are relatively straightforward and can be
summarized at the outset.
Mr. Moss was first employed by the L.C.B.O. on
January 19, 1970 and ultimately came to be assigned to a
position in the latter's store #4 at 213 Danforth Avenue, in
Toronto in July 1973. From the evidence of his Store Manager,
Assistant Store Manager and his District Supervisor, it
would appear that Mr. Moss was, in all respects, save one, a
satisfactory and capabl e employee. However, from the annual
3.
rating reports that were prepared by his manager and supervisors,
and from the attendance record that was maintained by the
employer, it is clear that throughout most of the period
that he was stationed at the Danforth store his attendance
record was a matter of some concern to the employer. Thus
and although his attendance improved somewhat in 1974, in
1973 his record was determined by his supervisor to be
sufficiently "below average" as to "hinder the operation of
the store" and cause the latter to caution Mr. Moss that he
would not recommend a future promotion unless there was an
improvement in this area. Moreover in 1975, in which he was
absent some 84 days, only 14 of which were taken on sick
leave, the supervisor and his manager were sufficiently disturbed
with his absenteeism problem to cause them to recommend that
there.should be no change in his salary. Indeed in the
five month period during which he was employed by the L.C.B.O.
in 1976, it is a matter of record that Mr; Moss was absent
from work on eleven separate occasions in January, for the
entire period between March 10 and 30, and for the period
between May 17 and May 26. It was, essentially, as a result
of certain specific events that transpired during the
latter period of absence that caused the employer to suspend
the grievor on May 26, 1976 pending an investigation into
those incidents and which ultimately precipitated its termination
of him effective June 7, 1976.
More specifically, and with respect to the circumstances
prevailing in the week immediately preceding his suspension,
4.
it is a matter of agreement between the parties that Mr. Moss
requested that he be allowed to be absent from work on
account of illness on Monday May 17 and Tuesday May 18. On
both occasions, Mr. Moss actually reported for work but after
advising Mr. Campbell, the Assistant Store Manager, of his
condition he was allowed to return home. However, on the
second occasion it was the evidence of Mr. Campbell that
his Supervisor, a Mr. J. Bell, inquired whether the grievor had
been provided with a Q-11 on which he could secure his
physician's certification as to his illness. To put
Mr. Bell's inquiry in its proper context, it was the evidence
of Mr. Campbell , which was corroborated by the grievor, and
which is, by virtue of Exhibit 9 a matter of record, that
following the grievor's absences in January of that year,
Mr. Moss had been suspended for a period of ten days and had,
as a mandatory condition of continued employment, been
required to obtain a Q-11 for any absence of two or more
days duration. That condition, which was acceded to by the
grievor and notice of which was provided to the union, is
considerably more stringent than that required by the
collective agreement for all other employees. In any event
it was apparently as a result of that stipulation which had
been imposed by the employer on March 2, 1976, that Mr. Bell
caused Messrs. Campbell and Gulliver to actually deliver a
copy of the Q-11 to Mr. MOSS'S home. This, according to
their evidence they did at approximately 11:OO o'clock
that Tuesday morning. However according to their evidence
they were unable to deliver the Q-11 to the grievor personally
because when Mr. Campbell knocked at the grievor's door, he
I
1
” 5.
was unable to evoke any response to his efforts. To the
contrary, and although the grievor placed the date of this
sequence of events as ,being the morning of Wednesday May 19,
it was his evidence that because of the medication that he
was taking at the time to relieve his asthmatic bronchitis,
he had fallen asleep and had been unaware of the visitors
he had received. Indeed it was his evidence, that it was
at approximately lunch time, when his son returned from
school, that the latter discovered the form that had been
left by his superiors and delivered it to him. Moreover,
according to Mr. Moss, after speaking to Mr. Campbell on
the phone at approximately 3:00-3:30 p.m., he then visited
his physician, Dr. John A. MacLennan, whose office is only
some seven minutes walking distance from his home. It was
Mr. MOSS'S assertion that it was at this visit during which
Dr. MacLennan prescribed some choledyl for his congestion,
and advised him that he should remain off work for a further
week, that he left the Q-11 with his physician so as to allow
the latter to complete it and forward it to the L.c.8.0.'~
own physician. However, it is a matter of agreement between
the parties that this Q-11, if indeed it was that actual
certificate, only arrived at the employer's offices on May 28,
1976. In fact, it was in part because the employer still had
not received a Q-11 by May 25th, for any portion of what had
then been an uninterrupted absence of over a week'sdoration,
that it determined to initially suspend him on May 26 pending
an investigation into the entire matter. In short, it was
6.
this deficiency in his behaviour that the employer now contends
was one of two culminating incidents which gave rise to its
decision initially to discipline and ultimately to dismiss
the grievor from his employment.
The second sequence of events which supports the other
culminating incident occurred slightly later in that same week.
As noted earlier, the grievor had, by all accounts, been
absent from work for the first three days of the week
commencing May 17. Thursday, by the record, was his regular
day off and on Friday, when he was again scheduled to work,
he called Mr. Campbell at approximately 8:30-8:45 to advise
that his physical condition prevented him from reporting
for work. Moreover Mr. Moss and Mr. Campbell are agreed that
in that conversation the latter specifically inquired whether
the grievor would be available for work the next day, which was
the Saturday of the long holiday weekend. According to both
their evidence, when Mr. Moss declared he was uncertain as
to his prospects for the next day, Mr. Campbell specifically
requested, and the grievor unequivocally affirmed, that he
would call later in the afternoon and provide Mr. Campbell
with an answer. Mr. Campbell testified that he was anxious
to know on the Friday as to the grievor's availability for
work the next day because, being a holiday weekend, it
would prove difficult to secure a replacement for the grievor
if the 1 atter unexpectedly failed to report, as scheduled,
on the Saturday.
he was aware, given his past disciplinary difficulties and
Mr. Campbell 's obligation to meet his staffing requirements,
Indeed it was conceded by the grievor that
of the importance to everyone that he make that call to
Mr. Campbell..
As a matter of historical fact that call never
transpired. That is to say, the parties are agreed that
Mr. Moss never did reach his Assistant Manager by phone
or otherwise that evening. According to Mr. Moss he had
again succumbed to the effects of his medication and overslept
his intended call. In fact he testified that he did not
awaken until after 5:30 p.m. and only placed a call to his
store at sometime between 5:30 and 6:00 p.m., at a time when
he knew Mr. Campbell would have left for home. He stated in
evidence that when he made that call he now believes that he
spoke to a Mr. K. Gourlie, although he conceded that at one
time he thought it may have been Mr. A. Selensak. However
according to Mr. Campbell, who had left instructions, (precisely
with whom he could not recall), that he should be called
at home if and when Mr. Moss phoned in that evening, his
inquiries of his staff satisfy him that no call was received
at the store that evening from Mr. Moss. In any event it
would appear that the parties are in agreement that Mr. Moss
did call and speak with either Mr. Selensak or Mr. Gourlie
on the Saturday and did advise of his unavailability at that
time. However and because according to the employer, the grievor
had failed, contrary to his expressed assurance, to report to
Mr. Campbell on the Friday afternoon as to his availability for
work the following day, Mr. Moss had again displayed such a
8.
deficient and derelict attitude with respect to his
attendance and dependability as to again warrant some
disciplinary sanction. In short, it was this specific
act of misconduct that the employer claims supports and
gives rise to the second culminating incident which
precipitated its dismissal of the grievor.
The doctrine of the culminating incident is one
well known to the arbitral jurisprudence in the private
sector and is one which this Board has had occasion to
apply in the past.
this doctrine holds that:
See Re Noble 6/75. By its terms,
where an employee has engaged in some
final
culminating act of misconduct for
which some disciplinary sanction may be
imposed,
it is entirely proper for the
employer and the arbitrator to consider
a checkered and blameworthy employment
record in determining the sanction that
is appropriate for that final incident.
That is, just as in the criminal law, arbitrators
recognize that the penalties for a
second, third and fourth offender
may increase with each succeeding offence.
The doctrine then, in one sense, simply
purports to accommodate the employer 's
legitimate interest in being able to
terminate the employment of someone who
but for such a doctrine, could with
impunity commit repeated infractions of
diverse company rules and policies and
generally perfom in an unsatisfactory
manner without fear of being discharged,
so long as he did not commit a serious
offence or did not persist in misconduct
of the same type.
the doctrine permits the emptoyer to
adduce evidence with respect to the
grievor ‘s prior b lameworthy emp loyment
record in order
to justify its disciplinary
action on the occasion of some final act
of misconduct, which standing alone, would
not warrant the severity of the penalty
imposed.
Put somewhat differently,
z
9.
However and following from this definition, it is manifest
that as a condition precedent to its application, the employer
must establish some final or culminating instance of misconduct
for which some disciplinary sanction may be imposed Re C. R.
SneZgrove Co. Ltd. (19731 3 L.A.C.(SdI, 348 (Carter). In
our view and after assessing the evidence described above,
we are satisfied that the employer has made out, on the
balance of probabilities, one of the culminating incidents
on which it relied. Accordingly it is therefore entitled to
open up and put forward the employee's past employment
record to justify and.support the specific penalty imposed.
Firstly, however, and before addressing ourselves
to the incident which transpired on May 21, 1976, and
assessing the propriety of the penalty imposed, we should
initially note that on the evidence described we are of
the conviction that the employer could not rely on the
grievor's failure to produce a Q-11 on May 25, 1976 as an act
of misconduct for which any discipline could be imposed
and on which the doctrine of the culminating incident could
be founded. To the contrary and even if we did not accept
the grievor's evidence with respect to his presentation of
the Q-11 to Dr. MacLennan on Wednesday May 19, we cannot
envisage how, in failing to produce a Q-11 by May 25~he
could be said to have acted in any way that was unreasonable
or improper or which was in violation of any rule
or requirement laid down by the employer or stipulated
in the agreement. Rather,on our reading of Mr. MacDougall's
10.
letter of March 2, 1976, the employer simply required the
grievor to produce a Q-11 for any illness of two or more
days duration without specifying the time in which such
a certificate must be presented.
the evidence there was never any instructions which were either
given to the grievor specifically, or expected of all
employees generally, which stipulated the particular times in
which a Q-11 must be produced following a period of illness.
Indeed in Mr. Gulliver's memorandum of April 5, 1976 to
Mr. Moss, (Exhibit 10), the latter is advised only that it
is his responsibility to ensure that these forms are
"promptly returned". Against that standard and given that
the grievor was off work continuously from May 17 until
May 26, we do not share the implicit judgement of the
employer that it was unreasonable for the grievor to assume
that he could properly await the conclusion of that
period of illness before submitting a Q-11 for it. Putting
the matter somewhat differently,while it is true that by
Indeed, on our review of
virtue of Mr. MacDougall's letter of March 2, 1976, the
grievor was expected and had agreed to submit a medical
certificate for each period of absence of two days or more,
there is nothing in that or any other instruction given by
the employer which would require a Q-11 to be produced
immediately after an absence of two days, where that absence
continued uninterrupted beyond that two day period. Rather
in our view, such an interpretation of Mr. MacDougall's
instructions would be unreasonable, unworkable and inconsistent
11.
with the more general and flexible requirement set out in
Mr. Gulliver's own memorandum of April 5. Accordingly,
even though the employer had not received a Q-11 from the
grievor by May 25, which was the date on which it actually
determined to suspend him, we are unable to find
any fault or dereliction in the grievor's conduct which
would then support the invocation of some disciplinary
sanction. Very simply'and at that time, even if the grievor
had not yet attempted to secure a Q-11 to substantiate
his illness, in our view his conduct could not in any
way be described as deficient, unreasonable or in violation
of any known rule ore regulation. Accordingly and against
that assessment of the grievor's conduct there is, on
this aspect of the case, no need for us to determine whether
in fact the grievor caused Dr. MacLennan to submit a Q-11
on May 19, 21 or some other date or whether the Q-11 that
ultimately was received by the employer, after the decision
was taken to impose the suspension, met the employer's
requirements.
However and that matter aside, we are also satisfied
that on the evidence described, the employer was entitled
to regard the grievor's conduct of May 21, 1976, as deficient
and culpable and was therefore entitled to rely on that
incident as forming a culminating incident for which it
could properly invoke its disciplinary powers. In the first
place, and even if we accept the grievor's version as to what
transpired on that day, we are satisfied that his failure to
12.
contact Mr. Campbell personally or have some other person
do so and advise as to his availability to work the following
day was, in the circumstances, demonstrably inexcusable.
Very simply, and in the context of having recently been
suspended for a period of ten days for his deficient attend-
ance record,
Mr. Moss should have made every effort to comply
with the instructions given to him by Mr. Campbell earlier
in the day.
evidence on this point, his efforts in phoning the store
between 5:30-6:00 and talking to a fellow employee, did not, in
the circumstances in which he found himself, satisfy the
obligation he had undertaken earlier that day. More
specifically,and to advert to the grievor's testimony before
us, we are of the firm conclusion that his efforts in
calling the store between 5:30-6:00, at a time when he admitted
he knew
Mr. Campbell would have left the store, and only
inquiring as to the latter's availability, simply does not satisfy
the obligation he assumed earlier that day, To the contrary
and even passing over the inconsistency that is manifest
in that explanation, in those circumstances the grievor
was ob1 iged, in view of his earlier commitment, to have
Mr. Gourlie inform Mr. Campbell as to his availability for
the Saturday or and in the alternative he should have done so
directly himself. His failure to pursue either of these alter-
natives in our view was sufficiently deficient behaviour as to
warrant the imposition of some disciplinary sanction. Moreover
and given the grievor's own admission that he was aware of the jeopardy
in which his employment was regarded, his explanation that he
In our view, and even if we accepted the grievor's
13.
he did not call Mr. Campbell at his home because he had,
in January of that year, received a reprimand for having
contacted Mr. Campbell at his home early one morning does
not justify his failure to do so on this occasion. To the
contrary and in the circumstances in which he found himself
that day, in our view, if he had to make a choice between thos,e
two conflicting alternatives, the only reasonable response
would have been to respond to the most immediate and urgent
matter and to call Mr. Campbell directly at his home.
Mr. Campbell had made it quite plain to the grievor that
he wanted to know before Saturday whether the grievor
could work on May 22. The grievor testified he understood
the importance Mr. Campbell had placed on that call being
made. Accordingly and against his earlier suspension, the
fact that Mr. Campbell may have reprimanded him for calling
him early one morning at his home was not a sufficient
or reasonable excuse for his failure to contact him on this
occasion. Very simply, and his earlier reprimand notwithstanding,
Mr. Campbell's specific instructions earlier in the day
would have afforded the grievor a complete defence to any
allegation that he had failed to heed his earlier reprimand.
Moreover, it should be noted that there was a third avenue
available to the grievor which could have easily extricated
him from his dilennna. Very simply, and as noted above,
he could have easily requested Mr. Gourlie to pass on the
message to Mr. Campbell for him.
In any event, and perhaps more critically given our
ultimate task in this particular grievance, there are additional
14 .
reasons why we have come to the conclusion that the grievor's
conduct on May 21 was of such a nature as to warrant the
imposition of a disciplinary sanction.
of the conviction, for the reasons that follow, that the
explanations given by the grievor, for his failure to call
Mr. Campbell on the afternoon of May 21, are neither logical
Succinctly, we are
nor credible. To be blunt, we do not believe him either
when he testified that he had slept through that afternoon
as a result of his medication or when he claimed that he
placed a call to the store some time after 5:30 p.m. In
the first place, we would note that, although he never
directly attributed his falling asleep on the day in question
to the drug dalmane which he was taking at the time, in
fact it could only have been that drug which would have
produced that effect. That
is to say, of all the other drugs
which he testified he was taking at the time, none, according
to him, would have caused him to fall asleep.
his own evidence and from the typed prescription on the
bottle, it is manifest that the dalrnane was only to be taken
at bedtime and then only if needed for sleep. In short we
find it difficult to believe, particularly when another of
the drugs he was taking at the time was intended for day
time use as a relaxant, that Mr. Moss ingested some of
the dalmane during the day in question.
not only would such conduct have been unnecessary and out of the
ordinary but as well, it would have been inconsistent with its
However from
Rather, in our view,
prescri bed use for him to ingest the dalmane in the middle
.
15.
of the day. Accordingly, in those circumstances and knowing
that he would be obliged to call Mr. Campbell later in the
afternoon, we find it incredible and cannot accept the grievor's
assertion that he ove.rslept his intended call owing to
the medication he was on at the time.
Moreover we are also skeptical of and do not believe
the grievor's evidence that he did in fact call the store
sometime after 5:30 p.m. when Mr. Campbell had left for the
day. Firstly and against his assertion stands the entirely
credible evidence of Mr. Campbell that to his knowledge and
information no such call was ever made. Moreover we would
note that on the grievor's own most immediate recollection
of these events, which is contained in his letter dated
May 27, 1976 (Exhibit 4) there is not a single referenc~e
to his ever having made such a call. That is and while
Mr. Moss made express reference to the phone call he had
with Mr. Campbell earlier that morning and to the subsequent
call he made to either Mr. Gourlie or Mr. Selensak on the
Saturday, there is a complete absence of any reference to his
having placed a second call to the store on the Friday
afternoon. In the face of what would otherwise appear to
be a complete and detailed description of the events which
transpired from May 17 until May 26, we are simply unable to
give any credence to the grievor's testimony before us that
in fact such a call was made. Indeed and given the parties'
.agreement that Mr. Moss did in fact phone on the Saturday
and did advise either Mr. Gourlie or Mr. Selensak of the fact
that he would not be in to work that day, it is difficult to
16.
comprehend or rationalize why that call was ever necessary
given that one would have reasonably expected that the grievor
would have advised Mr. Gourlie of that fact when he bad
spoken
to him sometime between 5:30 and 6:00 p.m. on the
preceding day. Put somewhat differently, if as he now
asserts he phoned
Mr. Gourlie on the Friday afternoon there
would in our view be no logical or rationale basis for him
to have initiated a second call on the Saturday morning.
Succinctly that call would, assuming him to have acted ration-
ally and reasonably, have become redundant and superfl uous.
There are additional reasons why this Board is
reluctant
to accept and is sceptical of the grievor's evidence
as to why he did not return his call to Mr. Campbell on the
afternoon of May 21, 1976.
to the events of that day, they do however so materially
undermine and subvert the credibility of Mr. MOSS, as to
require us to reject and dismiss his explanations for his
behaviour on that day.
a programme, designed to assist him in overcoming his
addiction to alcohol conducted under the auspicies of
the Lakeshore Psychiatric Hospital in which the grievor
was enrolled throughout the latter half of 1975 and the first
three months of 1976, Mr. Moss testified before this Board
that the programme itself was not a particularly satisfactory
or useful one for him. Indeed it was his evidence that it
was because of that fact that he began to attend meetings
of Alcoholics Anonymous in November 1975. However and in
While not pertaining directly
For example and with respect to
17.
complete contradiction of that testimony, the grievor
indicated in his letter of May 27, 1976, that that particular
programne was in fact "most helpful". Moreover, the grievor's
assertion that he first began to attend the meetings of
Alcoholics Anonymous in November of 1975 is, against the
evidence of Mr. MacDougall and a Mr. R, who is a member
of ?A, impossible to accept. That is, it was.Mr. MacDougall's
evidence that he was unaware that the grievor was attending
at the meetings of AA until the latter advised him of that
fact during the processing of this grievance in
the summer of 1976. That evidence is consistent with that
adduced through Mr. R who testified that he first had
occasion to see Mr. Moss at an AA meeting in July of 1976.
In the result and given the supportive relationship that
exists between AA members and particularly between persons
such as Mr. Moss and Mr. R who were friends prior to their
joining that organization, it simply strains our credulity
to accept the~fact that Mr. Moss must have attended meetings
of the AA for over seven months between November 1975 and
July 1976 without once ever having met his friend.
Other inconsistencies in the evidence of Mr. MOSS
abound. Thus on February 3, 1976 Mr. Moss caused a memorandum
to be sent to his employer to explain inter alia his absence --
of January 26. In that memorandum (Exhibit 8) he described
an incident in which he fell on his back on his way to work
as a result of which he could hardly walk. More specifically
he stated in his report to his employer,
18 .
When I returned to work January 26;
and not a half block from the store
I slipped on ice and fell on my back
with my wrist under me. I broke
my glasses and could hardly walk. I
arrived at work at 8:50 a.m. and told
Mr. J. Campbell what had happened and
that I would not be abZe to work.
I asked him if one of the clerks
Mr. R. Grenon could take me home in
his cur and he said it was alright.
I had the necessary forms filled by
my doctor, Dr. MacLennan and papers
sent to the medical centre to Dr. Sinclair.
I hope this explanation will meet with
your approval and consideration.
However and notwithstanding that the face of the Q-11
submitted by the grievor suggests that he suffered a lower
back strain on that occasion, in fact, on the back of that
Q-11, Dr. MacLennan advises that he had no knowledge of a
back injury and that in fact he saw the grievor on the
28th of January concerning his alcoholism. Indeed Messrs.
Gulliver and Campbell testified that prior to being taken home
that day, Mr. Moss actually purchased a small bottle of
alcohol. Moreover that is not the only occasion when although
he booked off sick, Mr. Moss was able to purchase a bottle of
liquor. Thus and although no mention is made of it on Exhibit 4,
Mr. Moss conceded at the hearing before us that on May 17,
1976 he did in fact visit a liquor outlet near his home to
buy a bottle of alcohol. Given his previous pattern of
conduct, and his claim that he was sufficiently ill to book
off sick, his assertion before this Board that he was simply
buying a bottle of liquor as a courtesy for a neighbour
can only be characterized as a flight into fantasy.
19.
Finally and because of the extensive attention
that was paid to it, we would note our disbelief with the
grievor's versionof the events that he claimed transpired
on Wednesday May 19. As noted earlier in this award, it
was the grievor's evidence that it was on that day that his
son handed him the Q-11 that had been left by Messrs. Gulliver
and Campbell at his home and that he visited Dr. MacLennan
in order to have that certificate completed, obtain some
medication and undergo an examination. Indeed, it was his
evidence that it was precisely because of his concern over
the unusual manner in which the Q-11 had been delivered to
his home, that he went directly to Dr. Maclennan's office
after he had spoken to Mr. Campbell later that afternoon.
For the record, we would note; on this aspect at least, that
the evidence he gave before this Board coincided with the
description of events he penned in his letter of May 27,
1976. However and as a matter of fact we have no hesitation
in concluding~that the grievor's recollection of what transpired
on Wednesday May 19, is wholly fabricated. In the first place
Mr. MOSS'S evidence is again seriously undermined by another
letter sent by Dr. MacLennan to the L.C.8.0. in which he advises
that in fact he never saw Mr. Moss on Wednesday May 19. To
the contrary, Dr. MacLennan asserts that he merely talked to
the grievor on the phone that day and prescribed some
medication for him. The fact that that prescription (Exhibit
21(d)) was filled on May 19, in our view tends to corroborate
Dr. MacLenna'n's recollection. Moreover and in addition, it
20
j
was Mr. Campbell's evidence, that in fact he visited the
grievor's home with Mr. Gulliver and delivered the Q-11
on Tuesday May 18 and not on Wednesday May 19. In the
result, this Board is faced from two quite independent
sources and quite distinct perspectives with evidence that
seriously undermines the basis for the grievor's claim that
he visited Dr. MacLennan on May 19, 1976 and which in our
view supports the discrediting of him as a credible witness.
In the result and against all of those inconsistencies,
deficiencies and contradictions in the grievor' S evidence
we simply cannot now place any credence in his version of
what transpired on the afternoon of May 21. Put at its
simplest, and against the evidence of Mr. Campbell, we are
confident that the employer's assumption that the grievor
simply failed
to respond, as he had promised, to Mr. Canpbell's
request that he advise as to his availability for work, is
an accurate one.
had reasona bl e
grounds on which to di sci pl i ne the grievor
for
his behaviour on that day.
noted earlier in this award, we are satisfied that the
employer has established the culminating incident
on which
In short we are satisfied that the employer
In the result and as we
it relied to invoke its disciplinary authority on May 25,
1976.
Against that conclusion, it follows as we have
earlier noted, that the employer may open and put forward
the grievor's prior employment record
to support the
reasonableness of its decision to dismiss him from his
employment. Although, at the time, the grievor's Counsel
objected strenuously to the introduction of evidence
21.
pertaining to the grievor's past, in view of our determination
as to the culminating incident, that objection now becomes
moot. However, we would note in any event, that our practice
of admitting the evidence pertaining to the grievor's
previous employment record during the presentation of the
employer's evidence Inchiefis consistent with the established
practice in the private sector and is one which in our view
expedites and facilitates the arbitration process by
averting the need to bifurcate the hearing. Re AZZied
Chemical Canada Ltd. (1975) 9 L.A.C.f2d), 300 hwzdt);
Re Hayes-Dana Ltd. (19731 3 L.A.C.(2dl, 371 (Weatherill).
Moreover and given the crucial,and paramount importance that the
credibility of the grievor played in this case, evidence
of his previous difficulties with alcohol was entirely
relevant to that issue,as well as to our determination of
the actual reasons for his absence during the culminatyng
sequence of events. So described, the evidence pertaining
to the grievpr's past record of absenteeism and difficulties
with alcohol was properly admissible before us and did not
in any way offend the principle articulated by Professor
Laskin in Re Aezwcide Dispensers Ltd. (19651 15 L.A.C.,
416 (taskin). To the contrary, at no time did the employer
seek to introduce this evidence of the grievor's prior
record to support or raise some new basis on which it
could discipline the grievor. Rather and as the employer's
Counsel stipulated at the hearing this evidence was adduced
primarily to put in issue the reasons given by the grievor
1
22.
for his final sequence of absences, to challenge his
credibility and ultimately, having established a culminating
incident,
to support the reasonableness of the penalty
imposed.
From that evidence, it would be trite to observe
that Mr. MOSS'S record is not an impressive one. As noted
above the grievor was so frequently and repeatedly absent
in the month of January, that the employer caused him to
be suspended from work for a period of ten days.
he was absent from work for the entire period from March 10
until March 30 of the same year. We have earlier noted his
experiences in 1975 and the fact that, as indicated in his
attendance records and annual appraisal reports, this
deficiency in his work has prevailed throughout the major
portion of his employment at 213 Danforth. As well, it
is clear to this Board and indeed it was conceded by his
Counsel
, that while many of the grievor's absences are
legitimate and bona fide, others can be directly attributed
In addition
to his addiction to alcohol . Moreover from the outset
of this hearing the grievor's Counsel conceded that this
employer has given
Mr. Moss considerable leeway and has
provided him with every assistance.
In the result, and against that record and for his
conduct on May 21, ultimately it is for this Board to
assess the reasonableness of the employer' S decision to
terminate Mr. Moss from his employment.
our task may be seen as an assessment of whether the employer's
decision not to continue in its toleration of the grievor's
In one sense
23.
illness and addiction and their attendant problems, was
reasonable in the circumstances. In making such a determination,
this Board has earlier described the analysis it intends to
apply in these terms:
In assessing the propriety of the empZoyer’s
termination of Mr. Stewart, we believe that his
circwnstcmces can and properly should be analyzed
to those cases, colloquialZy described in the
private sector, as terminations for innocent
but bZameless absenteeism, While it is true
that most, if not all of those cases relate
to what one might characterize as traditional
or conventional illnesses and injuries, we
believe that alcoholism, no less than a
matignancy induced or contributed to by the
inhalation of tar and nicotine can and perhaps
shouZd properly be perceived and characterized
as an illness. So chara&erized, it follows that
in assessing whether the employer had just and
reasonable grounds for terminating the grievor,
this Board should inquire of and satisfy itself
as to two different circumstances. That is,
in instances of termination for innocent
absenteeism, boards of arbitration must be
satisfied that both the past absenteeism record
of the ‘@ievor and the prognosis for the
empZoyee ‘s capability to report for work on a
regular basis in the future, support the
ennZotIer’s thesis that termination is a just
record. Re
350 fWeatheriZlI; ‘Re Brewers’ Ware
(19731 4 L.A.C. (2d), 356 (O’Shea);
Ferguson ‘Industries- Ltd. (19701 24
Re Barber-Ellis
(Schiff); ‘Re Internationa
(19651 16 L.A.C<
a& r&onable response to the employee’s attendance
AtZas Steel Co. (19751 8 L.A.C. (2dl,
houses ‘CO. Ltd.
ore ‘Massey-
L.A.C., 344 (Shime
of Canada (19681 19 L.A.C., 163
1 ‘Nickel Co.’ ‘of ‘Canada Ltd.
‘, 220 ~IEanrahan). More specificalZy
);
by focusing upon such criteria as the past employment
record of the griever, the nature and cause8 for
the absences in the past, the persistence of the
attendance problem, the effect of earlier attempts
by the empZoyer to rectify it, the frequency and
duration of the absences as we22 as any medical
prognosticatem as to the likelihood of the griever’s
abiZity to report on a regular basis, arbitrators
attempt to make reasoned judgemsnts as to the
griever’s ability to fully discharge his or her
empZoyment obligations in the future (Re ‘Temrle 12/76).
Re Stewart 27/76.
24.
Applied to the circumstances of the grievance
before us, we have no hesitation in concluding
that the employer's decision to terminate Mr. Moss was
entirely reasonable in the circumstances.
the frequency and persistence of the grievor's attendance
problems over the last three years of his employment are
manifest. On that aspect of this case, his attendance
record speaks for itself . Moreover and more critically,
there is simply
no objective and credible evidence, other
than the grievor's own assertion, that this Board could
rely upon to challenge the employer's decision as to his
future employment prospects.
Board can have every sympathy and hope for the grievor's
future prospects , where the employer has made considerable
efforts to assist an employee in overcoming his difficulties,
we cannot impugn its decision to terminate those endeavours
in the absence of some credible, objective and reasonable
evidence that would suggest that the grievor would respond
positively to further initiatives. In the circumstances
of this case that hard evidence is simply not before us.
Indeed, all of the evidence as to the grievor's future
employment prospects supports the reasonableness of the
employer's conclusions that in fact the grievor is still
unwilling or incapable of rehabilitating himself. We have
already noted that even as late as May 17, 1976 the grievor
was booking off work because of illness while simultaneously
being observed purchasing liquor in a nearby store. As
we have earlier stated, his explanation for this incident
In the first place
That is to say and while this
25.
defies even our credulity. Moreover it was a matter of
agreement between the parties that in fact the grievor
was discharged from the therapy progranzne of the Lakeshore
Psychiatric Hospital because of his inability or unwillingness
to comply with the requirements of that programme. Indeed
it was the grievor's own admission that even as late as '
January of the present year he suffered a relapse and
began to drink again. Very simply when we consider that
record, the fact he had received a ten day suspension
within the preceding three months, and the manner in which
he gave his testimony before this Board, (which itself
must reflect on his ability to squarely face the seriousness
of his situation), we are not prepared to characterize the
employer's decision to dismiss him as being unreasonable
in the circumstances. In the result we are of the view
that this is not an appropriate case in which this Board
should exercise its statutory authority to .alter the
disciplinary sanction that has been imposed. Rather and as
we earlier noted in’Re Stewart 2?/?6 at some point and
however tragic the circumstances, the employer is entitled
to protect itself and its other employees from the very
real and often significant costs that can result from an
employment record such as that of Mr. Moss. That is, and to
remind the parties of what we have earlier said with respect
to such cases:
In short, sensitive to the actual costs that
are generated by an empzoyee who is chronicaZZy
ill or incapacitated, and responsive to their
jurisdictional mandate, arbitrators generally
26.
he been unwillCng to require employers,
as a matter of public policy or social
obligation, to continue indefinite Zy in
employment, employees who me incapable of
discharging their emp loyment responsibi Zities
in a consistent and adequate manner. Re Canadian Safe@ Fuse Co. (1973) j L.A.C. (2d), 77 (Moalli).
Applied to the circumstances of this case we can cia no better than another board, which, when
confronted uith a similur tragedy concluded:
I would be less than frank if I did not
conclude by stai5ng that this case
presents
in a tangible way a probtem uf
great social dimensions. me individual
whose life is ravaged by personal weakness,
financial pressmes, or family difficulties,
represents a burden, not merely to the
company, but to society as a whole.
bud credit, his family’s basic needs, and
his inefficiencies as a wrker, all are
cost
items which are uttimateZy borne by
society. It is therefore particularly
tragic when such a person’s primary
productive activity is tedmted.
is his job the means by which he bears some
of these costs, but as well it may be a
vehicle for reintegrating him into the
community as a useful citizen.
job, prospects for rehabilitation are
obviously much Zmer. Yet it is not fair
to ask this company tu take the risks, to
bear the costs, of helping an individual
in this predicament. Surely such costs
ought ta be borne by society. Of course,
if good corporate citizenship leads the
company to undertake responsibiZiW (as it
did do in a ZMted way) it is to be commended.
For example, the company might properZy
have agreed to reinstate the grievor on
probation, upon proof that he was in
regular attendance at some social agency
tkat certified his reasonable prospects
of recovery. Perhaps, in fact, in
appropriate cases an arbitrator might so order.
Certainly nothing in my award is intended
to preclude any act of generosity by the
company in “salvaging” this employee.
Fortunately, the union has expressed its
willingness to assist in such a project.
However, if the parties canmt agree to
the institution of a scheme for helping
employees in similar circumstances, and
perhaps Mr. Sabodash himself, I am afraid
His
Not only
Absent a
27.
that I am unable tu compe2 them to do 80.
As an arbitrator, my function is to
ao&%icate the difference8 between the
parties, rather tkan to fashion for them,
out of UhoZe cZoth, eoZutione which they
are aluaya free to conetrwt, but kave
chosen not to.
‘Re DoUgZa8 Aircraft of Canada Ltd. (1966)
18 L.A.C. 38,42 (Arthairs).
Accordingly and for all of the reasons given,
this grievance is denied.
Dated at Toronto this 19th day of April 1977.
I concur
M. Gibb
Member
I conur
S R Hennessy
Member