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HomeMy WebLinkAbout1982-0394.Jacobson.83-09-14ONS?R,O CKJWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD 394/82 IN THE MATTER OF~AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: E. E. Palmer, Q.C. F. D. Collom A. G. Stapleton Vice Chairman Member Member For the Grievor: L. Stevens Grievance Officer Ontario Public Service Employees Union For the Employer: D. W. Brown, Q.C. Crown Law Office Civil Ministry of the Attorney General Hearing: OPSEU (Mr. K. M. Jacobson) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer M. M. Fleishman Crown Law Office Civil Ministry of the Attorney April 22, 1983 -2- DECISION The present arbitration arises out of~a grievance filed by Mr. K. M. Jacobson on 23 June 1982, alleging he was improperly terminated from employment and requesting reinstate- ment and permission to participate in the Employees' Alcohol and Drug Rehabilitation Program. This matter was not settled during the grievance procedure and so forms the basis of the present .arbitration, a hearing in relation to which took place in Toronto, Ontario, on 22 April 1983. At that time the parties were given an opportunity'to present evidence and argument. NO .question arose concerning the jnsisdiction or composition of the Board and it was agreed that the Board would reserve jurisdiction to deal with any question of compensation if that became relevant. The Employer based its case, in terms of testimony, upon two witnesses, the first. of which was Mr. W. A. .Radbourne, the Manager of Administrative Services in the Northerwest Region of Ontario for the Ministry of Transport and Communications. Mr. Radbourne indicated that he was responsible for personnel in that area and was aware of the grievor and his personal file. Initially, Mr.' Radbourne indicated that the grievor was hired in November of 1977 in a seasonal position and later, in October of 1978, successfully applied for the job of Equipment Operator I. One year later he was advanced to the position Of Equipment Operator III. The requirements for that job were canvassed. It is unnecessary to go into these, except to note that to hold this job it was necessary to be in position of a Class "B" Licence in order to handle the equipment used by the incumbents of this job. At this point, without going into unnecessary detail, it is clear that the Employer has brought to the attention of the grievor the necessity of maintenance of such a driving license as a condition of employment [see Exhibit VIII]. Thus, a document tendered by the Employer which was signed by the grievor on 21 December 1977 notes, amongst other things, that: Because of the Ministry's special responsibilities in this area, the loss of your operator's or chauffeur's licence, if your duties require you to operate a motor vehicle, whether the Ministry's or your own, will be viewed with severity. Any employee whose duties require possession of a valid operator's or chauffeur's licence issued under the authority of The Highway Traffic Act who has such licence suspended, shall report the fact to his supervisor immediately regardless of the circumstances under which such suspension occurred. In certain cases, suspension of licence renders an employee immediately and completely unable to perform the duties of his position while, in others, alternative arrangements may be made with no inconvenience, extra cost or loss of efficiency to the Ministry. You must realize, therefore, that if your licence is suspended, termination of your services or demotion to a position where operation of a motor vehicle is not required are possible consequences. Similarly, other warnings regarding the necessity of maintenance of licence have also been brought to the attention of -4- employees, including the grievor [see Exhibit IX]. Additionally: the Employer has brought to the attention of the grievor its Program on Alcohol and Drug Abuse by'Employees. Here, this was shown by Exhibit XI, which was signed by Mr. Jacobson. Con- sequently, Mr. 'Radbourne was of the opinion that'the grievor was fully aware of the foregoing. This testimony was put forward to set the stage for the initial loss of driving licence by the grievor on 21 July 1981. Apparently, at that time he made a court appearance and on a charge of impaired driving and was convicted for that offense. The penalty imposed was a three-month suspension of his licence. Mr. Radbourne testified that at ~that time the grievor was not terminated from employment: but rather was demoted to a non-operating position which was then available. Mr. Jacobson did not remain in this non- ; operating position for long because, in the Fall of 1981, a vacancy in his old classification of Equipment Operator III became available. Mr.. Jacobson successfully applied for this and returned to his old job. However, on 5 December 1981 the grievor was again apprehended and charged with the offense of impaired driving. On this occasion he eventually appeared in court on 5 April 1982 and was again con- victed. On this occasion, his licence was suspended for a six-month period. Mr. .Radbourne testified that, subsequent to this conviction, the position of the grievor was considered by members of managemen,t and, based on his job history and the fact that no alternate non- driving employment was available in the immediate area where the grievor worked, he was terminated. More specifically, with respect -5- to available alternative employment, it would appear Mr. ,Radbourne and his associates looked at the area within a 75 mile radius of where the grievor worked. Additionally, evidence was tendered to show that at the time no available alternate employment was open in that area [see Exhibit XIV dealing with "manual work or vacancies" in District X20, Kenora]. The Employer also called Mr. L. Lamoureux the District Maintenance Supervisor of their area where the~grievor worked. Basically, Mr. Lamoureaux' testimony was supportive of the position taken by Mr. Radbourne. His cross-examination, however, brought out certain points which are relevant to the case made by the Union. Thus, there were certain questions related to the openings available in which the grievor could be placed. The evidence on this point was somewhat vague. However, in result, the Board is of the view that Mr. Lamoureux maintained the position already set out in this regard. As well, the Union asked a number of question of Lamoureux regarding the condition of the grievor with respect to his consumption of alcohol. In a general way, Mr. Lamoureux testified he was aware of the general policies and procedures of the Employer with respect to employees suffering from alcoholism. Be also indicated that he was aware of the two convictions against the grievor; but he claimed there were no attendance problems which he had encountered with the grievor and, further, he was not fully aware of any problems in this regard the grievor might have. In -6- result, the Board, is satisfied that while the Employer might have had certain suspicions regarding the position of the grievor, nothing more certain than that could be stated. We might also note that the actions of Mr. Lamoureux in relation to the grievor could not be criticized. The Union called the grievor in support of this case. Mr. Jacobson indicated that he had worked as a Truck Driver prior to his employment by the Employer and that he lived in a small town of some 100 homes, the closest largest city being Dryden, Ontario, where jobs were difficult to come by. Mr. Jacobson is a man of 46 years of age, who is married with 7 children, one of whom remains at home. He had lived with his wife up until the period of the first suspension; but was separated at the time of the grievance. With respect to his difficulties, Mr. Jacobson testified he had no problems at work up until the.time of his first suspension, at which time he was involved in certain marital difficulties. He stated he had gone to his family doctor about this time with "nerve problems" and tiredness. Apparently, the charge which resulted in the loss of his licence related to certain events which occurred at his home when he was not in his car. He felt that he was being harassed by the police at the time and the charge against him was improper. With respect to the second suspension of his motor vehicle -7- licence, again he indicated this occurred at his home while he was not driving, although he was sitting in his car. Be stated he had returned to the family home to se,e his wife regarding marital and business matters. Again, he felt the suspension was improper. Mr. Jacobson also testified at some length regarding his business activities and the difficulties he was encountering in relation thereto. In brief, his financial position does not appear to be exceptionally good. Finally, Mr. Jacobson discussed briefly his alcoholic tendencies. In general, he indicated that he had wondered about his condition in this regard. The significant point, however, is that even at the date of the hearing he wasunaware if he was a problem drinker. On the basis of the foregoing, the Employer presented its argument in this matter. Briefly, the Employer stressed they had alerted the grievor to the fact that it was necessary that.tO. maintain his licence as a condition of employment and that this fact had been brought home to him on a number of occasions. None- theless, his licence had been lost on two occasions. They stressed the fact that on the first of these occasions, as alternate employ: ment was available, they had offered this to the grievor. In the second situation, however, such an option was not open to them and, hence, they dismissed the grievor. In regard to both decisions it was emphasized that no obligation was placed upon the Employer to -8- do as they did: rather, they took this course of .action voluntarily. In result, then, they urged that the evidence showed that the grievor was unable to carry out the normal duties for which he was employed and that, consequently, not having maintained this ability to work, the Employer was acting~~properly when it dismissed the grievor. A number of arbitration awards were cited to support the general propositions enWlcia!Ged. . The Union argument started with the view that the grievor was a good employee who had worked for some time with the Employer. Basically, the Union case was to the effect that, accepting the grievor was a satisfactory employee with a good attendance record, the only difficulty he had encountered was in relation to conduct outside. the employment relationship. Again, such conduct was tainted with the question of the grievor suffering from alcoholism. In this regard, the Union stressed that the Employer had a responsibility to adequately respond to the problems which Mr. Jacobson faced. In their view, having been alerted to this possible problem by the second charge against the grievor in December, it was necessary for them to take steps to see that the grievor tookadricn to deal with his alcoholism. This, it was stressed, was snot done by the Employer. Further, when.'che second conviction occurred, it was the view of the Union that the Employer had not responded adequately in -9- the situation. Simply put, it was their view that, in the circum- stances that then existed, it was incumbent~upon'the Employer to find alternate employment for Mr. Jacobson. In this regard, they stressed that the Employer had not canvassed job,opportunities to a sufficiently broad area to meet its obligations. In result, then, the Union requested that the grievance should succeed. Again, in support of the points made by them, a number of arbitral awards were cited. Having considered the foregoing, it is the view of the Board that this grievance should be dismissed. Theireasons for this, lie in the view of the Board that the Employer has acted entirely reasonably in this matter. It would seem that with respect to looking for alternate employment, they had bent over backward in Mr. Jacobson's interest. Thus, it might be recalled on the initial loss of license they found alternate employment for him and, in the final instance, again took steps to see if further jobs would be available, but failed. While it might be the case that had they gone further some job might have been found, .it is to be noted, however, that the policy adopted by them is not one which provides a guarantee of another job and there is nothing in arbitral jurisprudence which requires the employer to give employees in these circumstances alternative employment as a matter of right. What has to be looked at is the reasonability of the efforts taken by the employer and here we find that they can be characterized in that way. - 10 - Similarly, we cannot accept the argument for the Union that the Employer had failed in its obligations towards Mr. Jacobson as they had not further pushed the question of his alleged alcoholism. On this point, it seems clear that, even if such an' alcoholic condition existed, Mr. Jacobson was not sure that that was the case and, even more significantly, his actions in relation to his employment were not consistent with him having some problem of this nature. The position put forward by the Union, in our view, is untenable. An employer cannot pry into'the affairs of employees and cannot be expected to take any stand on this issue,unless there is something which would reasonably alert the employer to the existence of such a condition. Here none of these pre-conditions existed. To reiterate, then, it is the view of this Board that the instant grievance must be.dismissed. DATED at London, Ontario, this 14~th day ofseptember, 1983. F. D. Collom I: 3560 11: 0000 ‘(CL 4!Q??LA A. Stapleton -