HomeMy WebLinkAbout1984-0372.Rupert.85-10-08IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (Lawrence Rupertl
and
The Crown in Right of Ontario
(Ministry of Correctional Services)
trievor
Employer
Before: M. R. Corsky Vice-Chairman
S. D. Kaufman Member
D. B. Middleton Member
For the Crievor: K. Waisglass
Barrister & Solicitor
Toronto, Ontario
For the Employer: 3. Benedict, Manager, Compensation Branch
Human Resources and Compensation Board
Ministry of Correctional Services
Hearings: August, 3, 1984
May 10, 1985
May 21, 1985
May 22, 1985
The GrieVOr, Lawrence Rupert, was, at the time of his
dismissal (effective date, March 6, 1984) a Correctional Officer II,
with a date of hire of August 23, 1978, and was employed by the
Ministry of Correctional Services in the Waterloo, Ontario, Detention
Centre. On March 6, 1984, Mr. Rupert filed a grievance claiming that
he had been dismissed without just cause and requested reinstatement
and compensation for all lost wages, benefits and credits and the
removal from his personnel file of any reference to his dismissal.
At the outset of the hearing, the parties agreed that we
were not to treat the grievance as being based on an alleged dis-
missal without just cause, as.was alleged in the.~grievance filed.
We were instructed to treat this case as one where the Grievor had
been dismissed from his employment because: he was unable to ..:
establish and maintain an acceptable,level of attendance. His
absenteeism was to be treated as innocent, and not culpable.
The position of the Employer was that it was entitled to reasonably
regular attendance on the part of the Grievor, that it had not
received what it was entitled to in the way of attendance, and that,
on all the evidence, it was justified in its conclusion that there
was no reasonable prognosis of the Grievor maintaining an acceptable
level of regular attendance in the future. Based upon these conclusir
it was the position of the Employer that it was justified in termin-'
ating the Grievor's employment based on his record of innocent
absenteeism, accompanied, as it was, by a poor prognosis for improve-
ment. (See Exhibit 4, being the letter of dismissal received by the
Grievor, dated March 2, 1984, written by T. H.~ Watson, the then
Superintendent, of the Waterloo Detention Centre.)
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In addition to the above agreement, there was filed with
the Board, at the commencement of the hearing on August 3, 1984, a
document containing certain agreed to facts, which are as follows:
"Facts
1. There was a history of absences exceeding institutiona and Ministry averages.
2. The grievor's absenteeism was wholly innocent - there are no questions of abuse of sick leave.
3. There were warnings and the grievor was put on notice that he must bring med.ical certificates for all absent
4. Management was aware that the grievor had marital and.
financial problems."
The Grievance Settlement Board has accepted much of the
arbitral jurisprudence relating to innocent or blameless absenteeism,
. it has been developed in the private sector. This fact was noted
in the unreported case of OPSEU(Richardson)and the Crown in the riaht
of Ontario (Ministry of Correctional Services), 517/81, being a de-
cision, of a panel of this Board, chaired by Professor P. G. Barton.
In summarizing these decisions, Professor Barton stated at pp.9-11:
"The "arbitral jurisprudence" if I may call hit _
that concerning innocent or blameless absenteeisn in the
private sector has been accepted by this Board in such cases
as Steuart 27/76, lmple 12/76, Moss 62/76, and others.
Such private sector cases as iie L'Socor<s
XospitaI (Weatherill 1979) 24 LAC 2nd 172, 2s United
Automobile Porkers and Massey-Ferguson Ltd. (P. Weiler)
20 LAC 370 C15691, and Re United Automobile Yorkers Loccl
458 ar.d
Mcssey-Ferguson Industries Ltd. (Shime 1972) 24 LX
344, ,have been accepted by this Board. These cases and
others establish the proposition that in certain serious
situations excessive absenteeism may warrant te--inatiOn Of '
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the employment relationshi?. Such termination is on the
basis that the employee is not able to satisfy his side of
the bargain to come to work on a regular basis. It is
quite clear that such dismissal is not discipline in the
sense.of a dismissal for blameworthy conduct, rather it is
primarily because the interestsof.the employer are substan-
tially impaired by such absenteeism. Naturally each case
must be decided of its own factsand absenteeism'with
respect to an employee in.one type of industry may cause
the employer less grief than absenteeism in another..Jor
examale in Re Aliments Stehirer: Ltee. atid Union Days
Employees to Commerce LooaZ 501 (iru m kin 198 1)
29 UC Qndl297;although the Grievor had been missing
-between 2.5 and 50 Cays per year, there was a pool of
employees available and the employer was not unduly
prejudicedby such absence. -
'~ i The cases make it clear that it is up to.nhe
employer to justify discharge by satisfying two require-
ments. In the first place it is necessary to show a record
of absenteeism which is excessive. In the second place
it is necessary to show that the prognosis is not good.
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In some situations where the Employer fails on the second
branch of the test, an Employee may be reinstated on a
probationary basis. Where the absences are for reasons
beyond the control of the Employee, as in this case, and
where the Employer cannot show that the prognosis is
black, the purIaose of the probationary reinstatement is 1
to see whether or not the situation will improve:'. .I
There was some suggestion from counsel for the Union that
the Grievor's attendance record was"not that bad"and that the Employer
had failed to satisfy the first part of the test. After having
examined the attendance record of the Grievor, I am satisfied that,
on any reasonable interpretation, it must Abe concluded that the
Grievor had not held up his end of the bargain concerning his obliq-
ation to maintain reasonable regular attendance. The nature of the
undertaking carried on by the Employer is such that it experienced
considerable difficulty in maintaining staffing because of the
Grievor's chronic absenteeism.
I am satisfied from the evidence of Dr. D. J. Macdonald,
the Director of the Community~Mental Health Clinic in Cambridge,
Ontario, who testified on behalf of the Grievor, that the fundamental
basis for the substantial majority of the Grievor's absences was his'
chronic~alcoholism and not the obstensible reasons given by him
for such absences. The Grievor suffered from a number of physical
ailments, including stomach ulcers and hypertension and these, amonq
other physical ailments and emotional problems,were cited by him as
the reason for his absences. To the date of his discharge, and for
some ~considerable time thereafter, the Grievor continued to
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deny that he had a problem with alcohol and endeavored to explain his
absences on the basis of his various physical ailments along with
the anxiety and depression brought about as a result of his serious
domestic and financial difficulties.
From the evidence, I am satisfied that the Grievor's
Supervisors and the Grievor's advisor, Mr. S. Armstrong, were either
aware or had strong suspicions that the Grievor had a problem with
alcohol. Mr. Armstrong testified that he perceived his responsibility
to the Grievor as one requiring that he take, at face value, the
position gut forward by the Grievor (that he did not have. an alcohol
problem) even if Mr. Armstrong had strong suspicions.to the contrary.
Although the Grievor's supervisors also had strong suspicions that the
Grievor had an alcohol problem, what was clearly the fundamental
problem for the Grievor (his problem with alcohol), was never
directly addressed, as it ought to have been..
On a number of occasions, the Grievor's supervisors
brought his poor attendance record to his attention and, in no
uncertain terms, made it clear to him that it would have to be
improved as, otherwise, he might be discharged. 'It was clear from
the testimony of Dr. Macdonald, that!as long as the Grievor's
a,lcohol problem remained unaddressed and untreated, his attendance
problem would not be overcome.
From the perspective of the Employer, the Grievor had beer.
unable to maintain the level of attendance that it was entitled to
expect. Furthermore, the situation had gone on for so long, that, in
the absence of evidence to the contrary, it was entitled to treat the
prognosis for satisfactory attendance as being so poor as to warrant
its conclusion that the Grievor's attendance would not improve siGnif-
icantly. In the absence of any other evidence I would regard this
as a reasonable conclusion.
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The evidence was clear that,prior to the Grievor's
discharge, and for a considerable period thereafter, he ‘did every-
thing possible to avoid having to deal with his alcoholism, and
he was unwilling to acknowledge that he had a problem with alcohol.
His failure to cooperate with the Employer,so as to permit its
representatives to receive information from the Grievor's then
physician,undoubtedly had a part to play in the decision to dismiss
him. From the Employer's point of view, there was ample evidence
to disclose a very unacceptable attendance record and there was
nothing before the Employer's representatives to indicate a
favourable prognosis. There is some difference among arbitrators
as to who bears the onus in establishing a poor prognosis for
future attendance. It is unnecessary to rule on this point as I
find that, on a balance of probabilities, there was evidence indicatin;
a poor prognosis for future attendance at the time of the discharge.
To the date of discharge it was the Grievor's position that he
suffered from a variety of physical ailment; and~emotional problems.
which resulted in his being 'absent from work,on numerousoccasions
over a period of several years. These ailments and emotional problems
continued to plague the Grievor and, after a considerable period of
time, it was reasonable for the Employer to conclude that the
situation was not likely to improve.
'Absent certain other considerations, that would end the
matter. However, certain facts concerning the Grievor's prognosis
for regular attendance emerged after the Grievor's discharge, which
facts considerably altered the prognosis arrived at by the Employer
when it decided to discharge the Grievor. Argument was presented
:3 t:7is 9oard, on behalf of the Employer, urging us to refuse to
consider the Grievor's post-grievance behavior, as it related to the
prognosis for his future attendance. It is evident that an Employer
must make its decision to discharge an employee for innocent absentee
on evidence available to it at that time. It was urged upon us, on
behalf of the Employer, that there is an unreal burden cast upon it
if its actions, properly based on evidence available to it, and which
evidence would be sufficient to enable it to discharge an employee
for innocent absenteeism, could be overcome by evidence not reasonaS
available to it at the time it acted or by evidence which did not, in
fact, exist at the time it decided to act. In this case, given
the hostile attitude of the Grievor to the endeavorson the part of
the Employer to obtain additional medical evidence, and his contin-
uing posture of denying his main problem, it cannot be said that
the Employer reasonably had available to it information which
conflicted with that already possessed by it relating to the
Grievor's prognosis for future attendance.
Whatever debate may still exist concerning the right
of a board of arbitration to rely on post-discharge evidence in
ascertaining the prognosis for future attendance,. the Grievance
Settlement Board has established a precedent of permitting such.
evidence to be used in deciding the issue of whether a grievor
is likely to be able to establish an acceptable attendance record in
the future. In the case of OLBEU (Mr. A. Saunders) and the Crown in
Right of Ontario (Liauor Control Board of Ontario, 252/82, (Swan),
it was stated, at p-5:
"This Board's jurisprudence, developed in a long series of cases beginning with Re Cook and Ministrv of Labour, 115/78 (Swinton) has recognized the admissibility of post-discharge rehabilitation as proper evidence of the prognosis for future attendance
at work and satisfactory performance.. The Cock
a
decision has been upheld by the Courts of
this province as an appropriate exercise of this Board's jurisdiction, and the Cook decision has been followed in other cases, since . . . . "
Mr. Swan notes, at p.5, that:
"[T]hose cases establish that alcoholism
is to be viewed as an illness rather than as culpable behavior in itself and, indeed, the effects of alcohol may be a mitigating
factor in certain cases of otherwise culpable conduct: See Re Cook supra. These cases
simulate alcohol cases to cases of innocent inability, such as through illness or disability,
to.perform the functions of employment. The
important factor is the prognosis~for future usefulness and efficiency of the employee."
The seeming unfairness.of permitting a grievor to benefit
from the delay in concluding the arbitration hearing is referred toby
Mr. Swan at p.6'of the Saunders case:
"While the grievor's case has gained considerable weight simply because of the delay which occurred because of his previous 'waiver' and the length of time involved in the intervention of the Ombudsman, that weight still goes to precisely the issue which is central to a determination of whether he should be reinstated: the likelihood o,f his future reliability as an employee. Because of that delay, the Grievor is able to make a case which is much . stronger for example than that advanced in Burns
a decision in which the present Vice-Chairman participated, and possibily that presented in several of the other cases cited above. . ..*
It is desirable that the jurisprudence of this Board
be consistent, in the absence of cogent reasons for different rules
applying to essentially similar circumstances. Even in the private
sector, it has been noted that if a particular rule has prevailed fcr
a long period of time, it is one which has come to be relied upon
by the parties and ought only to be changed for very good reasons.
30 such reasons were presented to this Board to persuade it to depart
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from the practice of permitting post-discharge evidenced to be
adduced, and acted upon, in deciding the issue of prognosis for
regular attendance and satisfactory service.
The prognosis with respect to future attendance was
provided by two medical witnesses called on behalf of the Grievor.
As mentioned above, Dr. D. J. Macdonald testified on behalf Of the
Grievor. He is a fellow of the Royal College of Physicians of
Canada,with specialist .qualifications in psychiatry. He testified
that the Grievor is an alcoholic. Dr. Macdonald was ~of the
opinion that the Grievor has suffered no irreversible medical
problems as a result of his alcoholism,but would inevitably do SO
if he did not cease drinking. As a result of the Grievor's
subsequent treatment and abstension from alcohol, Dr..Macdonald
believes that the Grievor has forestalled the inevitable process
of alcoholism. It was Dr. Macdonald's further, opinion that while
alcohol was not the only cause of the Grievor's absences from work,
it was the significant feature contributing to such absences. Dr.
Macdonald indicated that he was prepared to see the Grievor on an
on-going: basis in order to assist in his rehabilitation. It was
Dr. Macdonald who informed the Grievor about the alcohol addiction
treatment program at the Homewood Sanitorium in Guelph, Ontario,
and the Grievor was referred to that institution for treatment.
Dr. Macdonald indicated that the Grievor had taken the first major
step in dealing with his alcohol.problem by admitting that he
had a problem, and,on the basis of Dr. Macdonald's observations,
the Grievor was well into the process of acceptance. Dr. Macdonald
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was particularly impressed with the fact that the Grievor had
participated in and completed major portions of,the Homewood
program. The Grievor entered the Homewood program on February
25, 1985, and his participation in that program willbe dealt
with later in this Award.
Dr. Macdonald indicated that the Homewood Sanitorium
is a private psychriatic facility located in Guelph, Ontario,
and has a treatment speciality in alcohol addiction in one of
its units. He stated that the percentage of alcoholics who
voluntarily seek help is about 1% and that it represented a
major step for the~Grievor to enter the Homewood program and
that his sincerity was further manifested by his remaining with
the program. Dr. Macdonald acknowledged that he was aware of the
fact that the Grievor had left the program during its second part,
on March 13, 1995,Cduring a health crisis affecting his step-father),
but had subsequently returned to and successfully completed the progrer
Dr. Macdonald indicated that he was satisfied that this was not a
"cop-out of the program" by the Grievor and that the Grievor's
returning to the program.,after his father's health crisis was over,
indicated this to be the case. The Grievor is now in the third stage
of the Homewood program, which Dr. Macdonald felt was an important
step. Dr. Macdonald stated that he has noticed important changes in
the Grievor since the latter's admission to the Homewood program and
further stated that he found the Grievor to have become more
relaxed and insightful about his condition. He also found the
Grievor to be more reasonable, less anxious and less depressed. Dr.
Macdonald felt that the Grievor's relapse was not that significant
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and regarded it as part of the "healing process." His prognosis was
that the Grievor's chances of being able to attend work on a regular
basis and carry out his duties in a proper manner were reasonably
good at this stage of his rehabilitation, and he felt that the Grievor
had come quite some distance in dealing with'a very serious problem.
Dr. Macdonald stated that he doubted that absenteeism would be a
serious problem for the Grievor in the future. St was his opinion
that the Grievor will be able to carry out his duties with a good
attendance record and that the Grievor is now in better health and
in more control of his life than he had been in the past and that he
is now capable of being employed in his old job.
Dr. Macdonald's evidence must be given considerable weight
He testified that he has worked with alcoholics for many years and
that, during his medical residency, spent four years as the senior
resident at the Addiction Research Foundation in Toronto.
Dr. Macdonald stated that he first saw the Grievor on
September 27, 1984, and issued his medical report on October 31, 1984.
Subsequent to October 31, 1984, he saw the Grievor on November 29,
1984 and May 8, 1985. As I have already indicated, the fact that the
evidence of Dr. Macdonald relates to post-discharge events does not
affect those facts being examined with a view to ascertaining their
relevance to the issue of the Grievor's prognosis for future attendar.
and satisfactory performance. I am also affected by the fact that
Dr. Macdonald has been to the Waterloo Detention Centre and is
familiar with it and the problems and pressures affecting the Centre'
staff.
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Dr. Macdonald was frank in acknowledging that his opinion,
in the case of alcoholics,is a guarded one but that this was not
intended to indicate that he was lacking in a positive feeling about
the Grievor's chances and he explained that one must always be
"guarded" in issuing a prognosis in the case of an alcoholic. I
concluded that Dr..Macdonald was about as positive as he could be
when dealing with an alcoholic and, given the.attitude of the Employer
towards alcoholism, which will be dealt with in more detail,,subsequentl
I would regard his prognosis for the Grievor's-maintaining an acceptabl
level of attendance and for satisfactory performance in the future
as a positive one. In fact, Dr. Macdonald indicated that he now
feels more optimistic about the Grievor's prognosis than he did in
his written prognosis made in Exhibit 3.
A favourable prognosis with respect to the Griever's
being able to maintain reasonable attendance and performance was
also given by Dr. Arthur W. Prowse. ~Dr. Prowse,is certified as a
psychiatrist and is on the active duty staff at the Homewood
Sanitarium and is the staff psychiatrist responsible for admission,
assessment and treatment of patients in the alcohol treatment program,
Dr. Prowse supervises care and co-ordinates the treatment furnished
by a multi-disciplinary team,involving nurses, social workers,
occupational therapists, psychologists, recreational therapists and
physiotherapists. Twenty patients are treated at a time in the alcoh:
treatment program. Dr. Prowse saw the Grievor on the day of his
admission (February 25, 19851, and prepared an admission assessment
and psychiatric evaluation. He saw the Grievor daily, except on
weekends when the duty psychiatrist had this responsibility.
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The Grievor's progress was reviewed at regular meetings of the
treatment team and the Grievor was seen by Dr. Prowse, on an
individual basis. As was indicated above, the Grievor discharged
himself from the Institution on March 13, 1985, when his step-father.,
who was ill, went through a crisis. The Grievor was re-admitted
to the program on April 19, 1985, after a new psychiatric assessment
was conducted. The Grievor then completed the full hospital in-
patient portion of the program and was, in the normal course of
events, discharged on May 7, 1985. Although the Grievor discharged
himself from the Institution on March 13, 1985, he did so for
compassionate reasons and, after a new assessment was completed,
prior to his re-admission on April 10, 1985, it was concluded that
the Grievor should be permitted back into the program so that he
might complete it. It was Dr. Prowse's evidence that the Grievor's
departure was not an unusal event and that other patients had done
so and were permitted to return in similar circumstances. Dr. Prowse
noted that a patient is not permitted~to check-out and come back
into the program at will.
The program is a three week program,conducted five days
a week with weekends off. It is composed of individual and group
sessions devoted to education, treatment and life-style planning.
There are also sessions conducted with family members. There is
an optional component which enables the patient to participate
in Alcoholics Anonymous, physiotherapy and recreational programs.
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The program at Homewood is divided into three phases.
The first pha;e relates to the admission of the patient to the
hospital and, where necessary,detoxification. Detoxification was not
necessary in the c&e of the Grievor. The second phase of the
program is an in-patient program, as above described. The third
phase is an out-patient portion,with anoptional follow-up. This
part is~not covered by OHIP and the follow-up costs the patient
$400.00 per year. The patients in the program are encouraged to
go on alcohol aversion therapy. In the case of the Grievor, the
drug antibuse was prescribed. Antibuse blocks the metabolism of
alcohol in the liver and creates most unpleasant side affects,
should the patient consume alcohol while on the program.
As part of the overall program,the Grievor and his wife
received counselling from a social worker in the unit and, in
addition, there were individual counselling sessions conducted by
Dr. Prowse. It was Dr. Prowse's opinion that the Grievor's
prognosis was improved as a result of his wife's involvement in
the treatment program and by the putting into place of an appropriate
follow-up program. Of considerable significance, according to Dr.
Prowse, was the fact that.the Grievor went on an antibuse program
after his first admission. In hospital, the Grievor was given
antibuse by a staff nurse and, on an out-patient basis, he took
it on his own, except for a brief period of two days between his
admissions.
Although the Grievor acknowledged that he had had a few
drinks between the two admissions,as a result of the stress related
t0 his step-father's illness and the financial difficulties thathe W+
ir.,Dr. Prowse did not appear to be upset by this relapse. Dr. Prowse
stated that a relapse is not uncommon among people with~alcohol
problems, however he felt that a patient who has had a relapse
coulh go on to a good prognosis. In Dr. Prowse's view, the Grievor's
overall progress under treatment satisfied him that he had
a reasonably good chance to remain alcohol free.
In reviewing the Grievor's progress through'the program,
Dr. Prowse stated that when the Grievor was re-admitted into the
program he was required to begin the program over again. The Doctor
testified that when the Grievor was first presented he had a fairly
advanced problem, with a strong element of denial, which Dr.~ Prowse
found compatible with this type of presentation. Dr. Prowse diagnosed
the Grievor to'be an episodic alcohol abuser, usually confining his
drinking to days-off or evenings. Dr. Prowse had certain reserv-
ations about the likely success of the.Grievor's treatment at the
time of the first admission. This was because of the strong element
of denial, and because it was his opinion that the Grievor was in
the program mainly because he had been advised to do so by his lawyer
and because of this arbitration. His opinion changed as the Grievor
continued in the program. Dr. Prowse stressed the importance
of an alcoholic accepting and discussing his problem and developing
motivation to deal with it. Dr. Prowse was impressed by
the change in the Grievor during his time in the program and noted
that,in individual sessions,the Grievor became more open and less
subject to deny his condition. The Grievor responded well to the
structure of the program land, on re-admission to the program, continue
to show less denial and more highly developed motivation. Dr. Prowse
felt that the frankness of the Grievor in admitting that he had con-
sumed alcohol between his two admissions was a good sign, as man)
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patients lie in those circumstances. Since the Grievor completed the
two .stages in the hospital's.program, the reports received by Dr. Prowsc
are favorable and he views the Grievor as being genuinely desirous of
dealing with his alcohol problem in an open and constructive fashion.
The Doctor is, nevertheless, not sanguine about the
Grievor's condition and stated that he felt that he requires an
on-going follow-up with "considerable teeth." He also felt that the
Grievor should attend the phase three weekly group sessions as well
as a local Alcoholic Anonymous group and obtain an Alcoholic Anonymous
sponsor. He also felt that the Grievor should be on an antibuse
treatment program and that it should be administered by someone at
work or at a medical clinic. He also felt that the Grievor should
continue to follow-up histreatment with sessions with Dr. Macdonald.
Dr. Prowse found it significant that the Grievor focused
on his alcohol problems at a time when he indicated that.he considered
dropping this arbitration case. This demonstrated to Dr. Prowse that
the Grievor was genuine in his endeavor to deal with his alcohol
problem.
The doctor also stated that the Grievor's ulcer condition
appeared to be under control when he was in the hospital and felt
that the Grievor could control his alcohol problem if he maintained
his follow-up plans and concluded that the prognosis for the Grievor
not drinking and being able to maintain regular attendance and
satisfactory performance was favourable,as long as the Grievor main-
tained his follow-up plans. Dr. Prowse emphasized that it was
essential, in the case of the Grievor, that he regularly use
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antibuse for at least two years. It was Dr. Prowse's view that a
patient, such as the Grievor, who remained on antibuse, would not
likely again consume alcohol.
In cross-examination, Dr. Prowse was asked about the
Grievor's suitability for continued employment in his previous job,
given the stresses of that job and the Grievor's character and
personality. He replied that he felt that the Grievor could perform
the job well if he abstained from alcohol, continued on pntibuse Andy
the follow-up treatment above described. It was his .opinion that
the Grievor was not ill-suited to the job as a prison guard and~that
he would not likely "fall off the wagon again easily."
The Employer had recognized that alcohol abuse is a
treatable illness and, at all material times, had in place, as part
of its Policy Statement in the. Conditions of Employment, as found
,in the Ontario Manual of Administration (Exhibit 291, the "Government.
Program on Alcohol and Drug Abuse by Employees." The Grievor was
never placed in this program, however, the program indicates the
intention of the Employer to deal with alcohol abuse in an enlightened
and humane fashion.
It was the position, taken on behalf of the Grievor, that
he receive payment for time lost and receive all benefits from the
time of his discharge. One of the grounds in support of this positic:
was the alleged failure of the Employer to adhere to its alcohol abus:
program. The other basis for the argument was thatthe Grievor could
not be discharged for the reasons given as long as he was entitled,
to be on sick leave pursuant to the provisions of Article 51.1 of the
collective agreement.
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With respect to the first argument, Counsel for the
'Employer argued that the alcohol abuse program is not part of the
collective agreement and failure on the part of the Employer to adhere
to its requirements is not something that the Grievor can rely on in
these proceedings. The Divisional Court, in the case of Re The
Gueen and the Right of Ontario and Ontario Public Service.Emplovees'
Union et al. (19841, 45 0.~. (2d) ~361, observed at,pp.365-6,
that an employer under the Crown Employees Collective Bargaining
Act may issue a manual which contains an indication as to how it -
will exercise its right to manage. Having done so, and having indic-
ated it would exercise its right in a manner equitable to both side,s,
it is required to a0 so. The Court held,(p.365) that the
employer cannot ignore an undertaking contained in such manual. It
did not matter, in the latter case,that the management manual was
not part of the collective agreement. The Divisional Court stated
at p.366:
"In the case at Bar, exercising its rights to manage, management promulgated the manual we have cited and in so doing indicated that
these rights would be exercised in a certain
way, equitable to both sides."
There was no indication, in this case, that management had not
dealt with employees with suspected alcohol abuse problems otherwise
than in accordance with Exhibit 29. Under the provisions of the
program.,it, is up to'the employee's superv'isor to identify"unsatisfactc
job performance[whichlmay be due to abuse of alcohol . ..I( (see p.4 of
Exhibit 29). I am satisfied that the Grievor's supervisor recognized
that his attendance problem might be related to an alcohol abuse
problem. Robert H. Nash, who testified on behalf of the Employer,
is retired from the Ministry and prior to his retirement was the
Superintendent of the Waterloo Detention Centre.. It wasp clear from ??r
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Nash's evidence that he had a strong suspicion that the Grievor had an
alcohol problem, however,Mr. Nash never accepted his fullresponsibilit:
under the alcohol abuse program. The Policy Statement in Exhibit 29
requires that supervisors be trained to recognize the effects of
alcohol on job performance and "to be cognizant of this policy so
as to be able to recommend employees for assessment and treatment
in accordance with [the] policy . ..". Upon the recommendation,
the employing Ministry "must initiate a referral to the Employee
Health Services Branch for a health examination where there is
unsatisfactory job performance and there is reason to believe the
abuse of alcohol... is a contributing~cause . ..". "Employees who
cooperate with the recommendation of the employer - initiated
referral" are to be "given reasonable opportunity to improve their
job performance . ..". Although there was some attempt to have the
Grievor accept a voluntary reference for assistance, without his
alcohol problem being directly referred to, the program envisaged
under Exhibit 29 was never followed. That is, as is required under
the action provision of Exhibit 29, the Grievor's supervisor did
not identify "unsatisfactory job performance which [mightlbe due to
abuse of alcohol . ..". The Deputy Minister designee did not prepare
"a referral letter to the employee outlining: the unsatisfactory
job performance with supporting observations and documentation: what
is expected of the employee ta improve his/her job performance to a
satisfactory level: the consequences of failing to approve job
performance to a satisfactory level: that the employee is being
referred under the terms of the government program on alcohol . . .
abuse by employees: and that the referral is not a disciplinary
action, but an offer to help." I need not go through the balance
cf the action requirement, which is intended to lead to treatment
and monitoring of the treatment.
‘G
i,’
20
Similarly, Brian Blackie, a shift supervisor at the
Waterloo Detention Centre, testified that he had a suspicion that the
Grievor had an alcohol problem but did nothing based on his suspicion.
It was the evidence of Tom Watson, the Superintendent of
the Waterloo Detention Centre,from January 1, 1984, that a meeting
was held with the Grievor on December 29, 1983. The meeting was
called with the intention of dismissing the Grievor, a decision that
Mr. Watson had previously arrived at. Mr. Watson stated that the
meeting took at least two hours and that he went over the entire
attendance record of the Grievor which he considered to be "atrociou:."
He stated that he went over' the .Grievor's attendance record year by
year and c,ompared it,with the institutionalaverage and the Ministry
average of between nine and 'ten days per employee per. year. He
stated that he told the Grievor that he was “f&-up’*~with ,his
attendance record and of what he perceived it to be doing to the
morale of the staff in the institution. He then asked the Grievor,
"Why shouldn't I dismiss you?". The Grievor then attributed his
attendance problem to marital and financial difficulties. Mr.
Watson said that he asked the Grievor how he could justify maintainins
the Grievor's employment and stated that there appeared to be nothing
in the Grievor's past record, which included a large number of meeting
and warnings, that had helped the Grievor to improve his attendance
record. Mr. Watson indicated that he was frustrated because he did
not know what the underlying cause of the Grievor's absences was.
AS Brian Blackie was present at this meeting, I am satisfied that
Mr. Watson was aware of the strong suspicion within the Institution
that the Grievor had an alcohol problem.
‘.
21
As I have already indicated, the Grievor was, at that
time, in a state where he did not admit to himself that he was an
alcoholic with a serious problem. I am satisfied that the only way
anything might have been done for him would be through resort to the
provisions of the alcohol program (Exhibit 29). It was up to super-
vision tq set the program in motion. Although it was done quite
innocently, supervision played into the Grievor's state of denial,
and the real problem was never faced. As well, Mr. Armstrong, the
representative of the Grievor, also innocently, enabled the Grievor
to maintain his stance of denial. As noted above, Mr. Armstrong
conceived his role to be entirely "supportive" of the Grievor's
stated position. Although Mr. Armstrong is supposed to have
."tried to convince Mr. Rupert to go to employee counselling," the
suggestion was to be pursued on a voluntary basis and not under the
program set out in Exhibit 29. It was on the basis that some form
of counselling was, to be pursued by the Grievor that the decision
to dismiss the Grievor was forestalled On'December 29. As Mr. Watson
put it, he had, at the December 29 meeting,provided the Grievor with
an additional opportunity to address his problem "and create the'
proper attitude towards his attendance record." Unfortunately, the
Grievor's problem was alcohol. I find Mr. Watson to have had a
strong suspicion that this was the case. However, by the action
then taken,the real problem was ignored. It is evident that.the
'problem could only have been faced directly by resort to the pro-
.cedures set out under Exhibit 29.
The matter then proceeded to its inevitable conclusion.
Mr. Watson stated that he had a further meeting with the Grievor in
iaza r'ebruary of 1984, when he requested that medical certificates or
Watson decided to dismiss the Grievor on March 2, 1984 and was
motivated to make this decision after an earlier request by the
Grievor to change the recording of a sick day taken by him to a
vacation day credit, in order to improve his attendance record.
Mr. Watson's view, with which I concur, was that "a sick day was
a sick day and a vacation day was a vacation day." Mr. Watson was
fixated on the continued poor attendance record, while ignoring
evidence of its likely major cause, and he communicated with a~ KS.
Greenham who was then counselling the Grievor. Mr. Watson wished to
know what changes might be taking place that would affect the Griever's
attendance record. He 'was unable to get in touch with Ms. Greenham
and in the meantime the Grievor's attendance record continued to be
very poor and the ultimate communication with Ms. Greenham was ~rather
inconclusive. Mr. Watson was concerned because the Grievor had been
off for most of February 1984,and he asked Ms. Greenham if she knew
what the Grievor's problem was but Ms. Greenham would say nothing,
which Mr. Watson. attributed to the confidential nature of the relation-
ship between her and the Grievor. Mr. Watson also indicated that by tl
end of February he was totally "fed-up" after the promises and commit-
ments made by the Grievor to improve his attendance record had come to
naught. He felt that he had no other course of action but to dismiss
the Grievor as "no matter how much was done for (the Grievor] no impovc
ment was forthcoming." As I previously noted, none of the persons
concerned with the.Grievor's problem pursued the course that ought
to have been taken: a referral under Exhibit 29.
‘. .z
22
furnished with respect to future absences. The meeting was a
chance one, when the Grievor.brought in a medical certificate
to the secretary who is located near Mr. Watson's office. Mr.
.z
23
Although it was done innocently, supervision was remiss
in carrying out its responsibility under Exhibit 29. However, on
the totality of the evidence, and especially relying on the evidence
of Doctors Prowse and Macdonald, I cannot conclude that the Grievor
would have accepted the referral provided for under Exhibit 29. In
fact, even after he was discharged and even after the commencement
of the arbitration, the Grievor did nothing meaningful to change the
situation. It was only in February of 1985 that a truly positive
step was taken by him which, as it turned out, led to the reasonably
good prognosis as tom his ability to carry out his responsibilities
and maintain a satisfactory standard of service. .
In another case, the Grievor might have been entitled to
payment from the date of his discharge for lost wages and benefits,
because of the failure of the representatives of the Ministry to
adhere to the government program on alcohol abuse by employees.
Having set it into place and made it part of the conditions of
employment included in the Ontario Manual of Administration, an
"obligation [had] been assumed by managementin the very instrument
used in carrying out its duty to manage." See OPSEU case supra,. at
p.366. Where, however, as in this case, the evidence is all on the
side of the Grievor continuing to deny the reality of his alcohol
problem, I do not feel that it warrants the order for payment of
salary and benefits from the date of discharge, as reguested on
behalf of the Grievor, even if such an award were open to me.
It was fortuitous that the Grievor was able to submit
evidence of a good prognosis. But for the protracted hearing, and
the practice of this Board to permit post-discharge evidence relatLn9
to prognosis for regular attendance and satisfactory service, the
Griever would have failed in his attempt to regain his position.
-:
; ‘.
24
While alcohol abuse is treated by the Government of~ontario as a
treatable illness, the medical evidence was to the effect that it
is, nevertheless, *a disease of choice." That is, according to the
Doctors,the alcoholic employee decides to drink, to continue to drink
and to become an alcoholic. At the same time, the employee is
responsible for making the decision to stop drinking and to control
his or her problem with alcohol. While the Employer was, albeit
innocently, remiss in its obligations under the alcohol abuse
program, the Grievor cannot be seen to be blameless,in the limited
sense that I have described. While it is permissible to allow the
Grievor to adduce post-discharge evidence as to prognosis for regular
attendance and satisfactory performance, to permit him to succeed on P
claim for payment of lost wages and benefits during the period that
he continued to maintain.a position that was based on the denial of
his alcohol problem is;on the evidence, unwarranted.
The responsibilities under the government program on
alcohol abuse by employees are not one sided. The employee, "is
responsible for: using voluntarily all available counselling and
treatment facilities: . . . making every effort, including use of the
available diagnostic and treatment facilities to return his/her job
performance to a satisfactory level." While the Employer failed
in part of its responsibility under the~program, so did the Employee,
and this cannot be'overlooked in deciding whether the Grievor ought
to be entitled to payment of wages and benefits from the date of
discharge.
A further argument was made on behalf of the Griever,
that he could not be discharged for innocent absenteeism as long as
'he was covered by an existing sick ,leave plan. Counsel for the Grie:. 1
relied on Article 51.1 of the collective agreement, which is as follc~
I
I
.i ’ *
25
“Effective the 1st day of April, 1978, an
employee who is unable to attend to his
duties due to sickness or injury is entitled
to leave - - of absence with pay as follows:
(i) With regular salary for the first six (6)
working days of absence.
(ii) With seventy-five (75) percent of regular
salary ,for an additional one hundred and
twenty-four (124) working days of absence
in each calendar year,”
Counsel for the Griever relied on the case of Re DeHavilland
Aircraft of Canada Ltd. and United Automobile Workers, Local 112 1983,
9 L.A.C. (3d) 271 Rayner, where Professor Rayner stated at p.275
” The union ties the position that an employee who is receiving
either sicknrss and accident benefits or estended disability
benefits undrr the terms of the collective agreement. canno be
terminated :br innocent absenteeism. The employer naturally
disputes this suggestion. ”
Further, at pp.276-278, of the DeHavilland case,
Professor Rayner stated:
” After considering the matter with some care, particular!?. in
light of the ramifications of such a conclusion. I am of the opmlon
that the union’s position in this case should be accepted. I reach
his conclusion for several reasons.,
First. I am not persuaded that the conclusion of Pmfessor Schiff
in the Barber-Ellis case is correct. There is simply lirtle‘ or no
analysis of the problem LO support the conclusion that he reached.
On a more narrow techniral ground. it could be suggested that the
decision in Barber-Ellis :.- distinguishable from the present case as
in that cass the benefiu were protided by an outside insurer and
the obligations of the employer appeared to be simply LO provide
insurance coverage. In the present case, the obligations of the
employer are LO provide the benefits. This conclusion was reached
by Pmfessor Go&y in an earlier award between the parties
(grievance of Robert Baiker and policy grieruxe) issued in March
of this year. As I have already stated this is simply a technical
difference and may. in fact, be a difference without substance.
Secondly, there are substantial reasons to differ from the
conclusion reached in Barbm-EUis. Professor SamAs in his
award referred to above alluded to one of them. He pointed out that when the panics collectively barpain Ihe sickness and
accident insurance and group extended disability insurance
benefits, the employees gave up other monetaq benefits in order
to have the programme. It appears LO me, as it did so to Professor
Samuels. that to permit the employer to terminate for innocent
absenteeism during the currency of the protection afforded by the
pro-me uniiarerall~ permits the employer to destroy an
interest vested in the employee under the terms of the collective’
ag’reement. This reasoning assumes. of course, that rhe employee
qualified for either or both the sickness and accident benefits and
the extended disabiiity benefits. In the present case, the griever’s
absences were covered by one or the other of the programmes.
A third reason for reaching this conclusion is the nature of the
right of the employer to discharge generally for innocent absen-
teeism. Earlier anards indicate that this righ: Rows from a
contract. In other words. the employer, under the terms of an
employment contract created by the collective agreement, is
entitled to have the employee perform one of his basic contractual
obligations, i.e.. to attend at,work. If this right of the employer
flows from the contract, it would follow that that right can be
varied or fettered by the contract itself. It can hardly .be argued
that the contract has been frustrated by the inability of the
employee to attend at work for by negotiating sickness and
disability benehts. the parties obviously contemplated the very
situation that would form the baris of the application of the
doctrine of frustration. If that is the case, the doctrine has no
application.
Nor can it be argued that the benefits only are payable to
persons who are employees of the company. Such an argument is
somewhat circular in that it begs the major issue which is whether
the company can terminate employment during the currency of
the coverage. It seems wrong in principle that the company could
uniiaterahy end its obligation under the collective agreement with
respect to coverage’ by terminating the employee. An example,
perhaps more striking than the present case, would iIlustm.te this
conclusion. If one imagines that a long-term employee suffered a
severe illness or accident outside the work place which totally
disabled that person for lie. the company’s position would permit
the employer to terminate. If the disability benefits attached to
the employment status, that employee would lose those benefits.
However. the benefit provision of the agreement between the
pa~ies contemplates just the opposite result.
it could perhaps be suggested that the company could terminate
the employment of the employee but continue to be obligated to
pay benefits under the benefit sections of the collective agreement,
This argumex assumes, of course. that the benefit ‘payments are
not tied to enployment status. However. if thai be the case, it is
dificult to see how the company is in a worse position by
permitting the individual :o retain his employment status during
the currenw of the benefits under the sickness and accident and/or
extended disability plans. In the present case, the sickness and
accident plan provides coverage for 52 weeks. The e.xtended
disability plan provides coverage for a period of time equal to the
employee’s peam of seniority, less then 52 weeks covered by the
sickness and accident plan. Under such an anangement, it is
obvious that the employee does not continue IO accrue seniority
uhile receiving extended disability benefits. Otherxise there
would be no limit on the period of coverage established by the
extended disability benefit plan. Thu: if the employee was. for some reason or other, no longer toiaiiy disabled. rhar employee
would be enritled to return LO work to a po.-ition permitted by his
wniority.
26
27
During the courSe of argument by union counsel. I asked him if
there was any time limitation with respect to the applicability of
his argument. He replied that there was not. hly concern in this
area u’a. of course, that the empltiyer could be perpetually
responsible for maintaining an employee who no longer could work
for it. In putting this question to union counsel I contemplated the
follo\x-ing situation. An employee wa- absent from work for an
tslended period of rimr and covered either by :he sickness and
accident plan or rhe txiended disahi!ity plan. If the znion’s
argument is correct. the emplpyee co;id not be termina:ed for
innocen_t +enreeism during this time period. The employee then
r&&s to work and continues to accrw seniotity. The employee
then has a relapse and again goes on or‘< or both of the plans. The
union argument again would be that the employee could not be
terminated while coverage under these plans existed. If one
assumes that such a situation could repeat itself over and over
again, the employer would be required to maintain the employee on its employment rolls for rhat entire period. This possibility wzs
one of the reasons that I hesitated in accepting the union’s
argument. However, I have accepted it and it may be that that IS
a possibility that the employer must Ii\-e with. That possibility
flows from the contractual obligations that the parries have agi=eed
to. Practicallp speaking, however, there may be another answer to
that possibility. In my view, the employer when faced with a
statement by the employee that he or she is no longer sick or
disabled, may require medical evidence to tistablish that the
employee can retii to work. If that evidence is not forthcoming,
the employee would ‘remain on one or the other of the plans.
Event.+, after the passage of sufficient time. the cowage of
the plan wll end. At that point if the employee is no longer able to
return to work, the emploger could then invoke the concept of
discharge for innocent absenteeism.
Accordingly, for all of the reasons set out above, I conclude tha:
the employer in the present case cannot discharge for innocent
absenteeism while the employee is cove+ by the siclmess and
accident and/or ejitended disability plans. !*
In this case, Counsel for the Union relied upon the pro-
visions Of s.51 as entitling the Griever to be absent as a result
of sickness for one hundred and thirty days a year without
being subject to discharge for innocent absenteeism. The sickness
and accident policy in the DeHavilland case does not represent the
same basis for an employee being absent from work as is provided
by Article 51. In the case of OPSEU (William Couling and the Crown
in the Right of Ontario (Ministry of Health), (573/83), a case
decided by Vice-Chairman E. B. Jolliffe, Q.C., it was observed that
the existence of Article Si and the fact that an employee might
28
qualify for leave under that Article, isnot inconsistent with
dismissal for innocent absenteeism. At pp.8-9 of the Coulinq case,
it is stated:
"By this late date in the history of labour- management relations, it should be clear on
all sides that innocent absenteeism,.whether by reason of disease or injury, does not constitute just cause of dismissal, nor does
it justify threats of dismissal. There may
be extreme cases of prolonged absence and incapacity makinq it impossible for the employment relationship to continue. This case, however, never came near that criterion. It fell within the conditions expressly contemplated by Article 51 . . . of the collective agreement."
In the Coulinq case, the arbitrator found, on the facts
of that case, that he could not conclude that it would be impossible
for the employment relationship to continue because of prolonged
absence and incapacity.
In another case decided by Mr. Jolliffe, OPSEU (Jeanette
Jones) and the Crown in the Right of Ontario (Ministry of Correction:
Services),573/82, the arbitrator found that the Grievor was entitled
to rely on the provisions of Article 51.1 and, stated at p.27,
"Our second ground for upholding the grievance is obvious: the collective agreement expressly
contemplates that 'innocent absenteeism' calls
for, compensation rather than the extreme
penalty of dismissal."
In that case,%. Jolliffe found that the grievor's absenteeism record
was not sufficient to lead to a conclusion that she was incapable
of maintaining regular attendance. (See pp.25-27.) In the Jones
case, Article 51.1 was found to apply because the arbitrator was
satisfied that the absences of the grievor were not excessive. In
this case, as at the date of discharge, it had been established that
the Grievor's absences were excessive and, on the then available I
.c . ; -t z - c E , _ _ ._ __. - -; +- c 0 u I-' reasonably be concluded that he would be unable I
2 J k
29
to maintain reasonable attendance in the future. But for the fortuito;l
circumstance that the first day of hearing, in this case, took place or
Auqust 3, 1984, and the last hearinq took place on the 22nd day oft ?laLr,
1985, the Grievor would have been unable to demonstrate a good 'Y
prognosis for regular attendance. Such a prognosis could not then
have been made,, given the fact that the Griever did not enter the
Homewood program until February of 1985, and his progress in that
program could not be reasonably evaluated until April of 1985.
Accordingly, the Jones case cannot assist the Grievor.
Although I would allow the grievance, subject to the
conditions to be set forth hereinafter, I agree with the statement
of Mr. Swan, made at pp.b-7 of the Saunders case:
“While the Crievor’s case has gained considerable weight simply
&cause of the delay which occurred because of his previous Waiver” and
-de length of time involved in the intervention of the Ombudsman, that
i weight still goes to precisely the .issue which is central to a determination
of whether he, should be reinstated: the likelihood of his future reliabi!ity
as an employee. Because of that delay, the Crievor is able to make a case
that is much stronger, for example, than that advanced in Bums, a decision
in which the present Vice Chairman participated, and possibly than that
presented in several of the other cases cited above. Were this the occasion
of the first discharge of the Grievor, his case would be irresistible.
lhforrunately, however, it is not.
ii The other aspect of the dilemma which this case presents to the
Soa& is thar ati of the jurisprudence mentioned above depends upon
conditional reinstatement, and in every case one conditicn has br-n that
the Griever demonstrate his abiiity to continue as an effective empioyee
Lyy working for a period, of variable duration from,case to case, free of my
alcohol-related employment offenses,
including alcohol-related
E I ! ‘l
absenteeism, The .Board has always intended those orders to be final, in
t.be sense that they have been an offer of a last chance to an employ= ;o
demonstrate a continued usefulness to the Employer. E;nployers do not
have any obligation to function as social service agencies; they are entitled
to expect employes to be productive and reliable, and ought not KO have to
carq! e_mpioyees who cannot meet that standard of performance. ;‘lor do
we think that any different considerations ought to apply to an Employer
merely because it is a government agency or, in the CaSe of Lye present
Employer, has such a particular connection with the sale and consumption
of alcohol. The Board’s jurisprudence has been based upon the arbitral
opinions related to innocent absenteeism, and a characterization of alcohol
a an illness rather than as culpable conduct. As in the more purely
medical cases oft innocent absenteeism, therefore, the central concern is
the prognosis for the employee. if, however, these decisions are -designed
KO be “one I& chance”, it is vital to the institufionaf concerns being
advanced by the Board that a last chance never be repeated; to do so runs
the risk of ‘bringing the entire jurisprudence into disreplu-re, : \i
--’
In addition, while we do not wish to engage in the
all-too-common habit of arbitrators of asserting some. specialis: knowledge
of the disease of alcoholism, what refiable common knowledge about the
disease is available indicates that the rehabilitation of alcoholics would not
be improved, and indeed might be defeated by the knowledge that beyond
the ‘present last chance rhere may be yer another lass chance to be
rehabilitated; the conventional wisdom is that it is only when faced with
the choice between rehabilitation and a hopeless future that most
alcoholics find the strength 10 recove.. r* see Re British Columbia Telephone
Company and Telecommunication Workers’ Union (197S), 19 L.&C. (2d) 9%
30
(Gall). ”
,, ,s, \ :L 31 I also agree with the statements of Professor X. Swinton,
made in the case of B. Foy and the Crown in the Right of Ontario
(Ministry of Community and Social Services), 99/?9 at p.17:
"It would be useless to reinstate the qrievor if he were not prepared to take treatment, for the employer has a right
to expect adequate job performance from him. The whole purpose of the government's mandatory program is to try to save worthwhile employees."
Accordingly I would make the following order:
1. The grievance is allowed and the Grievor is forthwith
reinstated to his previous position with the Ministry of
Correctional Services in the Waterloo Detention.Centre.
Such reinstatement is without payment of lost wages and
benefits, however,' the Grievor will continue to accrue
seniority from the date of discharge.
2 . .The Griever is reinstated on the condition that he contin
to undergo treatment for alcoholism in the third stage
of the Homewood program.
3. The Grievor continue to see Dr. Macdonald until Dr.
Macdonald deems this to be unnecessary.
4. That the Grievor maintain membership and requisite -
attendance in an Alcoholics' Anonymous group for such
period of time as Dr. Macdonald deems necessary.
5. That the Grievor refrain from consuming any alcohol and
that he remain on an antibuse program for a period of two
years and .for such additional period of time as may be
determined by Dr. Macdonald.
6. That the person or persons to adminster antibuse to the
Griever should not be the Grievor or his wife. Should
the parties.be unable to agree on the way in which
the antibuse program should be administered, we will
retain jurisdicticn
tc resolve their dispute.
32
7. Failure on the part of the Grievor to adhere to the
above conditions will enable the Employer to discharge
the Grievor.
As agreed, the Board will retain jurisdiction to deal
with problems arising out of the implementation of this Award.
DATED AT London, Ontario
this8th day of October, 1985
M. R. Gorsky
vice-chairman
S. 0. Kaufman ’ @dden&mattached?
D. B. Middleton
Member
ADDENDUM
While I concur with the reasons and decision of the
majority to reinstate the Grievor and the terms of reinstatement,
in view of all the circumstances I would have reinstated the
Grievor with full benefits and wages from May 22, 1985, the last
date upon which evidence was heard.
It is unfortunate that the Grievor is deprived of his
benefits and wages for the approximately four months subsequent
to his having completed his case for reinstatement but before
the decision of this Board was rendered and communicated to
the parties.
Dated at Toronto this 8th day of October, 1985.
S. D. Kaufman
Union Nominee