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HomeMy WebLinkAbout1978-0115.Cook.79-03-07Between: Before: For the Grievor: For the Employer: Hearing: Place of Hearing: IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVEEBARGAINING'ACT Before THE GRIEVANCE SETTLEMENT BOARD Mr. Graham Cook And The Crown in Right of Ontario Ministry of Labour Professor Katherine Swinton - Mrs. Mary Gibb Mr. Brian Switzman Mrs. Liilian Stevens Ontario Public Service Employees Union 1901 Yonge,Street Toronto, Ontar.io. Vice-Chairman Member Member ,~, Mr. Dennis Brown, Counsel Ministry of the Attorney General 18th Floor, 18 King Street East Toronto, Ontario September 14, 1978 February 21, 1979 180 Dundas St. West, Toronto, Ontario Holiday Inn, 480 Riverside Drive West Windsor, Ontario L -2- This is a grievance in which Mr. Graham Cook claims that he has been unjustly discharged by the Ministry of Labour. Mr. Cook was employed by the Ministry as a Construction Safety Officer in the Windsor District Office from April 22, 1974 until his suspension and subsequent discharge, effective March 29, 1978~; The event precipitating the discharge was a discovery by his supervisor, Mr. Smith, on February 15, 1978 that Cook had . submitted a fraudulent Project Inspection Report, dated February -_, 3, 1978. -~ The major task of the Construction Safety Officer is to visit construction sites periodically to inspect for violations of the ConstructionSafety Act, 1973'and its regulations. The : officer makes a written report after each visit, noting any violations of the Act and any directions for compliance given. The superintendent of the construction project or a foreman is required to sign the report. Mr. Smith had discovered that the purported signature of a foreman on the February 3rd report for Purificati Construction was forged. When confronted, Mr. Cook admitted the forgery, ~apologized, and explained that this was an isolated incident caused by his being surmnoned away from the project by Bell-boy (Ex. 12). In fact, the forged report was found to be one of,many. Subsequent investigation of reports made by Cook turned up 55 fraudulent reports (Ex. 13)~. Cook was suspended and subsequently discharged, both for the fraudulent reports and for claiming travel-. ling expenses for visits which had never been made. -3- Mr. Cook does not deny that he submitted the 55 fraudulent reports. He also admits the gravity of his misconduct, for he had important responsibilities within the government's construction safety programme. Nevertheless, he has asked that the penalty of discharge be reduced for the reason that his misconduct was attribu- table to alcoholism and he has since made efforts to control his problem. Mr. Cook gave evidence of his history of alcoholism, which dates back prior to 1969. In that year, he did see a psychiatr~ist at his wife's instigation and was diagnosed as an alcoholic (Ex. 24). He was given a prescription for antabuse, which he used for only a few weeks. His drinking from 1969 until he joined the Ministry of Labour in 1974 did not disrupt his work, for it was largely confined to the evening.hours. At all times he tried to conceal his drinking, even from his wife. Sometime after his probationary period with the Ministry ended in April 1975, he began to drink during the day as well. To salvage some time for this, he began tb falsify inspection reports. The pattern of activity became one in which he would buy a bottle of liquor in the morning and drink about 5 to 6 ounces and then go to lunch. He would submit a fraudulent inspection report to cover this time. If he felt that his alcohol consumption might be evident during a project visit, he would forego the visit, submitting instead another false report. This continued, with increasing frequency, until the discovery in February, 1978. Mr. Cook began to receive treatment for his alcoholism.in April, -4- 1978. He was a patient of a psychiatrist, Dr. Walter Yaworsky, from April 4, 1978 until September 1978. He attended a 3-week out-patient clinic for alcoholics at the Connaught Clinic in Windsor from June 19 until July 7, 1978. This clinic involved educational sessions, group therapy, and individual counselling. Following it, Cook entered the Connaught's Support-Maintenance programme of weekly sessions from July 12, to August 30, and as well, continued individual counselling. He began drinking.again in late July and early August. This continued until October 1978, when he entered Brentwood House/a residential treatment centre in Windsor. He was a residential patient there for three months. He is now on a reduced schedule there, in order to allow him time with his wife and two children. He continues to attend meetings a,t Brentwood and is expected to do so permanently. Brentwood is based on a concept similar to Alcoholics Anonymous, with patients providing support for each other in confronting the reasons for their alcoholism. Cook and his'wife attend monthly couples' meetings and Mrs. Cook also attends wives' meetings there. In addition to Mr. and Mrs. Cook's evidence, the Board heard evidence from Dr. Walter Yaworsky, the psychiatrist who treated Mr. Cook after the discharge. Dr. Yaworsky, in a letter of July 17, 1978 (Ex. 4), gave his opinion that Mr. Cook was suffering from depression, anxiety and alcohol dependency, and he attributed the poor work performance and the forged inspection reports to an effort to cover up alcohol dependency. Dr. Yaworsky expanded on this opinion in his evidence before the Board. He felt that the prognosis for Cook after the Brentwood treatment was hopeful. i . . -5- The Board also heard evidence from.Father Charbonneau, Director of Brentwood. It was his opinion that Cook is now ready to return to work. This Board has the power to reduce a disciplinary penalty pursuant to s. 18(3) of the Crown Employees' Collective Bargaining Act, 1972. That section reads: (3) Where the Grievance Settlement Board determines that a disciplinary penalty or dis- missal is excessive, it my substitute such other penalty for the discipline or dismissal as it considers just and reasonable in all the circumstances. In this particular case, the fraudulent conduct in-which Mr. Cook engaged can not be condoned. The Construction Safety Officer plays an important.monitoring and enforcement role under the Construction Safety Act, and the fraudulent actions of the grievor . must be regarded as just cause for dismissal: Nevertheless, in the particular circumstances of this case, it is the opinion of the Board that the penalty of discharge is excessive, and a lesser penalty should be substituted pursuant to s. 18(3).-- In coming to this conclusion, the Board is not saying that alcoholism provides an excuse for any misconduct which can be related :.. . toan employee'.s alcoholism. In this case, the Board is not in any way condoning what Mr. Cook did, and a lengthy period of suspension through reinstatement without backpay reflects that conclusion. However, we are not dealing here with an offence~ against the criminal law, in which drunkenness short of automatism provides no excuse for an offence, although counsel for the employer drew an anology to the -6- criminal law. In the employment setting, we must balance both employer and employee interests in discipline cases in an effort to determine whether the employee can benefit from corrective discipline and continue to provide the employer with good service. Discharge can haveserious repercussions for any employee, for the blemish on his record will seriously jeopardize future job prospects. In the case of an employee with alcohol problems, it can have added' personal significance, in the added anxiety caused which can under-~ mine chances at rehabilitation. Therefore, if~,the employee can solve his alcohol problem, it is advantageous to keep him in the workplace. Of course, there are limits to the employer's responsibi- lity to maintain alcoholic employees, and at some point the employer must take steps to protect himself, other employees, and those whom they serve (here, the public), from the costs and effects of retain- ing this type of employee. In his study, Grievance Arbitration of Discharge Cases,.George Adams has noted that there is a high rate of reinstatement by arbi- trators in alcohol-related offences, yet these offences have the least successful reinstatement experience, with subsequent discharge in 50% of the cases and recurring discipline in 20% (p. 67). This. is in part attributable to the failure of arbitrators to concern themselves with the rehabilitation of the alcohol,ic employee and to impose conditions on reinstatement that both recognize alcoholism as any illness and provide for its treatment (at 35, 69). See also 5. J. Hill, "Alcoholism and the World of Work" in National Academy of Arbitrators, Arbitration - 1975, p. 93 at 96. In this particular case, the question is whether Mr. Cook's -7- alcohol problem can be resolved and whether he can fulfil his job duties satisfactorily. After hearing the evidence, the Board feels that both results are possible in Mr. Cook's case. He has made a sincere effort at rehabilitation over the last few months, and the prognosis for success from experts such as Father Charbonneau and Dr. Yaworsky is encouraging. Father Charbonneau testified that the Brentwood Cli'nic had had'an 80% to 85% success rate with clients . in the grievor's circumstances, that is, married men with children. He feels that the grievor is ready to return to work. Mr. Cook has admitted his problem, which:is a first step.toward rehabilitation of alcoholics. He appeared to the Board to.be sincere in his desire to try to end his dependency. His wife is very supportive and she .I- testified as to the positive effects of-the treatment at Brentwood. Mr. Cook had a good record while with the Ministry~of Labour. ii.\>.>_ The two men who had supervised him in his years in the Windsor Office, Mr. Smith and Mr. Greenlaw, both expressed their satisfaction with his work performance, and his disciplinary record was clear. Accord- ing to Dr. Yaworsky and the grievor, his misconduct in falsifying the inspection records was directly attributable to his alcoholism, for he needed to carve out time for his drinking. It would seem that, given a second chance, and with his present rehabilitation efforts, Mr. Cook will be able to resume working at the previous satisfactory. level of performance now that his alcohol problem is under control. Clearly, it is important to take steps to ensure that the present progress towards rehabilitation continues. The grievor has shown that he needs the support of a programme such as Brentwood to structure his efforts at rehabilitation, for his earlier attempts to A... I -a- end his dependency on his own have failed. Therefore, while the Board will order that the grievor be reinstated, it is on the conditions that he continue the Brentwood programme for at least one year or notify his superv.isors of any change in his programme. In addition, he must enter the Ontario Government's Program on Alcoholism. These formal conditions will only provide partial solutions to rehabilitation. The grievor will also need the support and understanding of his supervisor and co-workers. It would be bene- ficial for Mr. Cook if his supervisor.could be involved in his continuing rehabilitation. This might take the form of his super- visor attending educational orientation sessions, so that he could better understand and assist Mr. Cook in his adjustments to recovery. We note that supervisor training is part of the policy contained in the Government Program.~on-Alcoholism. Perhaps as well, the employer could give Mr. Cook access to an internal resource professional counsellor whom he could contact as.necessary. Of course, the final responsibility for resolving the alcohoa dependency problem must rest with Mr. Cook himself. Therefore, the Board will allow the grievance pursuant to s. lB(3) of the Crown Employees Collective Bargaining Act, 1972, and order that Mr. Cook be reinstated to his position as Construc- tion Safety Officer, without backpay and accrual of service credits, and subject to the conditions that he enter the government programne on alcoholism and continue the Brentwood programme for at least one -9- year or advise his employer of any change in that programme. Fis performance should be monitored during this year and if deteriora- tion is evidenced as a resul~t of alcoholism then his continued employment should be reviewed. Dated at Toronto this 7th day of March, 1979. Katherine Swinton - Vice-Chairman I concur Mary Gibb ..,. - Member I concur Brian Switzman - Member ,.;: '.