HomeMy WebLinkAbout1981-0280.Nizioi.87-02-28IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE 3ARGAINING ACT
2. Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OLBEU (*Mr. P. Nizioi)
and
The Crown in Right of Ontario
(Liquor Control Zoard sf Ontario)
Employer
Before: P.G. Barton - Vice-Chairman
S.R. Hennessy - .\,lember
M. Gibb - Member
For the Griever: P.J.J. Cavalluzzo, Counsel
Golden, Levinson
Barristers J( Soiicitors
For the Employer: &l.P. Moran, Counsel
Hicks, :vlorley, Hamilton, Stewart 6; Storie
Barristers & Solicitors
Hearing: june 11, 1982
DEC I S I GN
The Grievor works in Store 481, Surlinqton for K:e
Liquor Control 3oard of Ontario. On February 27, 1981, the
Grievor reported for work at 2:00 p.m. He was subs equ,ently
sent home for the day as unfit to work and suspended for a
further two days. On April 7, 1981, he filed a~ grievance
alleging that he had been disciplined without just cause.
We have not found the resolution of this issue to
be particularly easy because of a number of factors. In the
first place,the versionsof the incident given 'by the various
members of sta~ff who testified differed in some respectsone
from the others In the second place we are not satisfied that
the Grievor was totally candid in h~is answers to a number of
the questions directed to h,im at the hearing. There seems $0
have been a bit of over-reaching on each side, and as usual
we feel that the truffi is sometiere between tile two positions.
It is clear that at 2:OU p.m. on February 27, the Griever
arrived for-work and signed in in the office. Present in .'Usle
office were the Manager, R. G. Nay and a Clerk 4, 3. Stainer.
The Grievor who was normall;l quiet appeared to them to be in
high spirits, voluble, more open than usual, in wtiat was
described as a "free spirit moori”. He was also described as
a bit more boisterous than usual and"hyper." -After signing ‘in
the Grievor went back to the back part of t5e store to :mrk
on licencee orders. His normal job was to do this at the back
and to be available for cash relief if a cashier seeded to take
a break. Thus he would be in contact with the public while
on cash relief and to some extent tiile dealinq witin licencee
orders.
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While the Grievor was working in the back the Xanaqer, '.,
Mr. May went back to talk to him and suggested to him that he
might book off sick for the day. As the Manager put it,
"If he had done so he would not have been
disciplined."
Unfortunately, the Grievor did not take the advice of the Manager
and an argument ensued in which voices were raised and names
were used. The upshot of this was that the Grievor was sent
home and subsequently disciplined.
The basic question before us is whether or not the
J- Grievor reported to work in an unfit condition. Has the Employer
satisfied us that he was not fit? The original report written
by the Manager made a reference to the fact that the Grievor
"appeared to have been drinking prior to coming to *ark." This
certainly appears to have,been the opinion of the Manager at
the time although we are completely satisfied that no alcohol
was involved in the incident. No one noticed any smell of
alcohol, the Grievor's walk was normal, and immediately following
being sent home he went to his family doctor tie talked with him
for some minutes and wrote a letter in tiich he suggests that
he could find no evidence of impairment by alcohol or anything.
It is clear however that the Grievor was affected ty something
at the time and one possible explanation is the medication which
he was taking for dental surgery. If in fact he was ,beinq affected
by the medication which was fairly strong, he was apparently not
aware of it at the time nor do we have any evidence as to whether
or not he was told about its effects. We have no evidence to
- L: -
. . support the conclusion that h1.s condltlon was causec- oy mez:caticr..
but there was something about the Griever that afterncon which led
both the Manager and Assistant Yanaqer to wonder srhether or net he
was fit to work as a cashier and face the public. 'We are also
satisfied that it was reasonable for the Xanaqer to suqqest to
him that he take the day off. A person who is unusually loud
and boisterous for whatever reason is probably not in a condition
to deal with the public in a liquor store. However, if the
Grievor was in this condition because of the drugs or for some
other reason, we are not satisfied that the penalty was totally
apt. Certainly it seems to us to be a bit unfair to suspend
him for three;-days because he subsequently got into an arqument
with:the Nanaqer.- The fact that he got into an argument reflects
somewhat on his ability to work and to control his temper, but
we think that he should merely have taken the advice of the
Nanaqer and gone home. Accordingly, in this difficult situation,
we feel that the proper remedy is to remove the suspension from
his record, and treat him as if he had in fact booked off sick
_.;~.. on the day in question. Since he has apparently been paid for
the first day as sick, the grievance is allowed and the records
of the Employer will be amended to show that on the day in questicr.
he was -absent for a legitimate reaso
DATED AT London, Ontario
e this 1% Zay of July, 1982
. ..A..
S.R. Henness:- Member
U. Gibb Member