HomeMy WebLinkAbout1983-0771.Houle.84-03-28ONTARIO
CROWN EMPLOYEES
GRIEVANCE
SETTLEMENT
BOARD
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
For the Grievor:
For the Employer:
Hearing:
OPSEU (Randy Houle)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Transportation and Communications)
Employer
G. Brent Vice Chairman
F. Taylor Member
P. Camp Member
I. Freedman Legal Director, Grievance Section
Ontario Public Service Employees Union
D. W. Brown, Q.C.
Crown Law Office Civil
Ministry of the Attorney General
March 9, 1984
-_.
DECISION
The grievance in the above matter is dated November 14, 1983 and
alleges that the griever was “unjustly dismissed”. The griever was
notified of his discharge by’ letter dated November 3, 1983 (Ex. I), the
body of which is reproduced below:
I have received a report and recommendation
from Mr. W. A. Stewart, my designee, following upon
the hearing which he conducted on September 19,
1983, at which you wzre present.
I am satisfied that you were charged and
convicted with impaired driving while operating an
M.T.C. vehicle and lost your licence for a period
of three months. I am also aware that this offence
took place outside working hours.
You have considerable experience with the
Minlstry and have acknowledged reading Ministry
Circular No. 76-043 which repeated the Ministry’s
long-standing total prohibition of the operation of
Ministry equipment while under the influence of
alcohol. I cannot over-emphasize the serious view
taken of your total,disregard of the Ministry’s
long-standing policy with respect to the operation
of a Ministry vehicle while under the influence of
alcohol, particularly in view of the Ministry’s
responsibility both for the safety of the
travelling public and as the licensing authority
for the Province,
I regret, therefore, that after due
consideration of all factors, including your length
of service, I must inform you that, in accordance
with Section 22.-(3) of The Public Service Act,
R.S.O. 1980, Chapter 418, you are hereby dismissed
from employment for cause, and that your last day
at work will be Thursday, November 10, 1983. In
view of your length of service you will be
continued on the payroll until Friday, November 25,
1983, providing you with two weeks of paid time in
order to seek other employment.
If you consider that you have been unjustly
dismissed, you may file a grievance in accordance
with the provisions of Article 27.6.2 of the
Collective Agreement with respect to Working
Conditions and Employee Llene fi ts.
The Employer did not call any e.vidence. It relied on the following
facts which mre agreed to by both parties:
1. Commenced employment during the month of May, 1973.
2. Dismissed from employment on or about the 10th day
of November, 1983.
3. At the time of dismissal, classified as Maintenance
Mechanic 2.
4. On the 22nd day of August, 1983, Mr. Houle was
engaged jn a bridge construction project in the
vicinity of White River. Although he resided in
the City of Sault Ste. Marie, this project
necessitated his staying at a motel near White
River while engaged on the project.
5. On the evkning of the 22nd day of August, 1983,
after finishing his work, Mr. Houle took an MTC
vehicle and drove into the Town of White River
where he had dinner and later something to drink.
At approximately 1:00 A.M. on the morning of the
23rd day of August, 1983, while returning to his
motel and while operating the MTC vehicle,
Mr. joule was stopped and arrested by the Ontario
Provincial Police. He was subsequently charged
with impaired driving and having in excess of
.08 mm. of alcohol in his blood.
6. On the 9th day of September, 1983, Mr. Houle
pleaded guilty to impaired drivingand was fined
and his license was suspended for a period of three
months.
7. It has been acknowledged by Mr. Houle that he read
MTC policy i/76-043, relating to the use of MTC
equipment while under the influence of alcohol and
signed the appropriate form (copy of policy
attached).
8. There is no previous record of disciplinary
problems or similar conduct on the part of
Mr. joule and his work reco,rd has been
satisfactory.
The policy (Ex. 2) referred to in the above statement deals with
the use of alcoholic beverages while operating Ministry vehicles. We
reproduce only the following paragraph from the policy:
Because of the special responsibilities of the
Ministry of Transportation and Communications in
the administration of vehicle operation, 5E.x employee in charge of or operating Ministry
4
equipment will be subject to dismissal if there is
any indication that he has been consuming alcoholic
beverages.
The griever testified, he is thirty-two years old, married and the
father of two sons aged 12 and 9. He has been employed by the Ministry
since May, 1973 to work on bridges. He does not require a driver’s
licence to perform his work. When a crew is sent to work on projects it
is not unusual for him to be in charge of a Ministry vehicle and to do
the driving required to transport the crew.
The griever has never missed any work as a result of alcohol. He
does not have a problem with the use of alcohol and has never been
treated for any such problem. He had no previous conviction for any
alcohol-related offences.
He testified that he feels terrible about what has occurred and is
very sorry that it happened. He said that he is very concerned about
the effect which this incident has had on his family and has tried to
regain their respect after this. He testified that if he were
reinstated this would never occur again.
We were referred to many cases by counsel, and we have read and
considered those cases. As both counsel realized, most of the cases
deal with different issues than the one before us; therefore, we do not
Intend to deal specifically with each case. Rather we will make general
comments on the case before us with reference to specific decisions
where we consider that it would be most appropriate.
In the situation before us we are faced with an employee who was
off duty at the time that he was apprehended for impaired driving. It
is conceded that had he been driving his own vehicle at the time there
would have been no cause for discipline. We also note that, unlike the
situation in Crowley (GSB File Nos. 176183 and 177183) and other cases
5
cited, the griever was not required to possess a valid driver’s licence
in order to perform his work, and therefore would have been able to
perform all of his required duties even though he had no licence. The
fact that the griever was not on duty at the time also distinguishes
this case on the facts from Durnford (GSB File No. 592/82).
We should state clearly that we agree that there was cause to
discipline the griever. Although the events occurred outside of working
hours, the griever had the care and control of a Ministry vehicle and so
would be under a duty to the Ministry, as his employer, to use that
vehicle in a proper manner. Driving that vehicle while impaired is not
to be condoned and does not come within the ambit of what would
reasonably be considered to be the proper use of his employer’s vehicle.
The matter must therefore be considered to be so work-related as to be a
proper cause for discipline even though it occurred outside of working
hours.
The real dispute between the parties is whether the penalty of
discharge was excessive. The cases to which we were referred dealt with
various matters related to the use and abuse of alcohol. While not
specifically agreeing or disagreeing with any of the penalties imposed
in those cases, we believe that as a general rule arbitrators in both
the public and private set tars have tended to treat the use of alcohol
while on duty as a very serious matter. We do not take issue with that
approach. In the case before us, however, there is no indication that
the griever has ever used alcohol while at work, and the incident which
led to his being disciplined here occurred after hours while he was away
from home. It was an isolated incident which, insofar as driving while
impaired can ever be considered to be minor, was minor and did not
6
involve any personal injury or property damage.
Many cases have dealt with the factors which boards of arbitration
can and should consider when determining whether penalties should be
modified. In this case we Gave an employee with slightly over ten years
of seniority and a completely clear record. There is no reason to
believe that this was anything other than an isolated incident in an
otherwise unblemished career. The griever appears to be sincerely
repentant, and that together with his reaction to the consequences which
this has had on his personal life leads us to conclude that the chance
of this occurring again is very small indeed.
When all of the factors in Fhis case are considered, we conclude
that the penalty of discharge was excessive. We therefore order that
the griever be reinstated effective the date of the hearing (March 9,
1984) without loss of seniority and service-related credits or service-
related bsne fi ts.
DATED AT LONDON, ONTAEIO TEIS 28th DAY OF March, 1984.
J&a -ii?&
Gail Brent, Vice-Chairman
P. D. Camp, Member \