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HomeMy WebLinkAbout1986-0276.Spence.87-05-25hi : ‘< IN TRB MhlTRB OF AN &RBITP+TTON / .r ,. ,_. Under _ THE CRONN EMPLOYEES COLLECTIVE BARGAINING ACT , ~,, Before‘:: : --y .._ : i,, . .,. BETWEEN: . . . ,* OPSEU.(R. Spence) , Grievor _, TRE CROU+;ti'kiGRT OF ONTARIO .. (Ministry of Transportation and Communicaiioni)‘ Employer BEFORE: R.'L. Verity VlceXbairman .. ." J. McHanus Member Il. Roberts '. " Msiiber '- ~. _ .' I ._ FOR TBE GRIEVOR: R. Wells Counsel Gowling.+ Henderson : FOR TRB EMPLOYER: IC. B. Cribbie Senior Staff' Relations Officer Ministry of Transportation and Comurilcations EEARINGS : February 18, April 23,~1987' DECISION Robert Spence, aged 46, was dismissed from his position as a Manual Worker Premium at Kakabeka Falls Patrol Yard effective March 27, 1986. Deputy Minister, David tlobbs, neatly summarized the reas6ns for dismissal in a letter to the Grievor dated March 21. That letter reads, in part: m . . ..Your continual problems with alcohol including the recent incident where you,were found to be consuming alcoholic beverages on Ministry premises have and will continue to have an adverse affect on your ability to carry out your work assignments. Despite numerous attempts on your part to deal with your addiction along with the repeated assistance extended to you by your managers and the Ministry, you have been unable to control your illness...." The Grievance alleges unjust dismissal and seeks reinstatement with full remedial redress. Floweve?, at the Hearing, the Grievor abandoned any claim for compensation.. Robert Spence is a long service employee with seniority dating back to April 1, 1974. It is common ground that the Grievor is a good worker (when sober) and is well liked by both peers and supervisors. Tragically, the Grievor is an alcoholic and has suffered from that illness for some 12 years. Beginning in 1977, four successive district engineers have discussed with the Grievor I . -3 - . . his attendance and punctuality.problems, all,of,which, are alcohol ! related. No -fewer than s-even Ministry,hearings .have, been heAd to address the problem and to bring home .the,Employer'.s concerns and the Ministry policy. Since, 1977,, _,, the ,Gr,i,evor' has received t.yo,. letters of reprimand -and two f,ive day suspensions. ; /. .;. As a result of Ministrg_initiativgs, the.:Grievor was admitted .to four weeks:of ~inL-patient treatment, on-two separate occasions, at the Smith Alcohol and Drug Uependancy Clinic:at Thunder ~Bay - once in ~~1.979 and.a:second,admittance in 1981-82. Similarly, in November of 1.984, Spence was admi.tted to the'Alcoho1 Unit.of the Lakehead Psychiatric-Hospital for an intensive 35 day treatment program.. _. Unfortunately, these treatment programs failed to alleviate or control the alcoholism problem. On February 13, 1986, the Grievor; while on duty, admitted to- consuming brandy one the Ministry premises and was sent home. On February:.ll, 1986,.,the Grievor was observed-45 minutes late fork work and under the. influence of alcohol. Agai.n, he .was. sent home.. % 1 No'useful purpose.can be served, by repeating the..e,vidence adduced. In all, nine witness.es.testif.ied on behalf of the Employer. Undoubtedly, the most damaging testimony against the Grievor was presented by George Goldie, Program Co-ordinator, i . -4 - Alcohol Treatment Program, Lakehead Psychiatric Hospital. Mr. Goldie has acquired extensive experience in the treatment of alcoholics and first met the Grievor on November 5, 1984. He described the Grievor as inherently shy, reserved, and unable to deal effectively with his feelings and emotions. In the fall of 1986, Mr. Goldie denied the Grievor readmission to the Alcohol Unit because of suspicions of the Grievor's improper motivation. Mr. Goldie characterixed the Grievor's prognosis as "poor". There is no dispute that the Grievor continued drinking subsequent to his dismissal. Following the first arbitration hearing date, the Grievor began to ‘bleed internally ,and in early March of 1907 was admitted to MacRellar Hospital .with a bleeding ulcer. The Grievor was medically advised that continued use of alcohol would, in all probability, cause his death. To our surprise, when the Hearing reconvened on Apri’l 23, 1987, Hr. Goldie testified on the Grievor's behalf. After making appropriate inquiries, Mr. Goldie satisfied himself that the GrieVor is now sufficiently motivated to control his alcoholism. Mr. Spence was readmitted to the Alcohol unit of the Lakehead Psychiatric Hospital on March 9, discharged on April 21, 1987. Mr the Hospital and the Grievor have g87, and subsequently was Goldie advised the Board that entered into a iwritten aftercare program agreement. That agreement is reproduced,~ in material parts, as follows: ‘. . -5- :-;. ., ,.,. n That you go to:a halfway.house for a ) ~. L . period of not less than six months and negotiable- up"to one ydar',betweenyourself . ': and the halfway house staff with some input ffom G.' Goldiei'~~Program Coordinator' at LPH. : 2. '.! ' . ! i(' I' .',": ,_., That during the first three months of this stay in the recovery home that you will come back to the LPH on a daily basis for work therapy in the Vocational Workshop with ongoing counselling from Mr. Ed Nieckarz, Rehab.-Officer on the'Alcohol,ism Unit., ~,. : 3. That you will actively involve yourself in Alcoholics Anonymous whiler'at the halfway- house and attend no less than three A.A. meetings per week at the discretion of .Mr. George Tenniscoe, Manager, Crossroads Centre'Halfway~ Bouse1" ,_~A -Apparently, the Grievor:successfully completed-the most recent treatment program and now has-the motivation to;participate in the aftercare program. As a result, Mr:Goldie changed the Grievor's:,prognosis from '"poor! to~'"guardedly optimistic". -In argument; the thrust of the Employer!6 case was that the -Grievor had not responded to the-warnings; suspensions and numerous attempts made to.assiit-him,.and,that in.these .I circumstances the Employer was. justified in its dismissal action. The Union maintained thatthe post:discharge :evidenoe was sufficiently strong to justify a conditional reinstatement. zNun%rous arbitral.pr.ecedent were submitted by..the ,Parties. - -6 - : . I The Employer cannot be faulted'for taking some form of I disciplinary action against the Grievor for his unacceptable ' conduct in February of 1986. When the dismissal was imposed in March, the Grievor's prospects for any' form of rehabilitation appeared bleak. Indeed, the Employer has reacted to the Grievor's alcohol related problems in a most compassionate and understanding manner. This Employer 'las the good sense to recognise that the weight of current authority considers alcoholism as an illness or a disease which, if not totally curable, is at least controllable. Control of the illness depends in no small measure on the patient's degree of motivation. There is no suggestion that the Grievor was properly motivated to control his illness in March of 1986. In fact, the evidence is to the contrary. As indicated previously, the Grievor continued drinking subsequent to his dismissal. In the last two months, the Grievor has made serious efforts at rehabilitation, presumably because of the medical complication. In cases of alcoholism like cases of innocent absenteeism, it is not uncommon for arbitrators, in both the public and private sector, to consider post-discharge evidence in order to determine the appropriateness of the penalty imposed. See Re - Labatt's Ontario Breweries Ltd. and National Brewery Workers' Union; Local 1 (1978), 20 L.A.C. (2d) 66 (Brunner); Re Molson's Brewery (Ontario) Ltd. and Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers, Local 304 (1979), 23 L.A.C. (2d) 392.(Adell); and OLBEU (A. Saunders) .and Liquor Control aboard of Ontario, 252/82 (Swan). . .,,! 8, ; . . _ L, ' The right 'of an arbitration board to take into, ac,count post-discharge-evidence has been confirmed ,by-~the Ontario Divisional Court in the Judgment of Osler-J. in Re The Queen in Right of, Ontario.and Grievance Settlement Board, et ;a1 (1980), ,107 .D.L.R:(3d).599:,:27~ 0;R. 735; The Court stqted,as:follows at p. '611, D.L.R.', p. 747 O.R.: _ .:. ;, _. "The Ministry submitted'that the Board had no righttoconsider events occurring after.the discharge and that it did in fact take into account the-grievor's actions .in seeking '- ., treatment and attending meetings and such activities as were required;. As is wells known, in exceptional cases when a convicted. person has made~,significant progress,towards T reformation or rehabilitation while awaiting the hearing of an appeal,,the Court of Appeal will take such matters into account and modify a sentence accordingly.. I can see nothing :, . wrong or'beyond its power when the Grievance Settlement Board acts uponsimilar .'I principles." . . Section 19(3) of the Crown Employees Collective . . . Bargaining Act gives tom the Board broad remedial authority to substitute another penalty for discharge, in appropriate ~_, circumstances. The issue is whether a lesser penalty~ is' _ :. appropriate in these circumstances. . . y :. -7 - -8 - In cases of alcohol abuse, the Eoard must satisfy itself that the Grievor's alcohol problem is controlled to the point that ,he is able to satisfactorily perform his duties. In that regard, :the Board was impressed by the testimony of George Goldie, in spite of the change of prognosis. This changed prognosis resulted from the fact that Mr. Goldie satisfied himself that for the first time the Grievor was genuinely concerned about his health. On the 'evidence adduced, the episode of internal bleeding frightened the Grievor . This medical complication has caused Mr. Spence to enter into a stringent aftercare program - a program that he himself rejected in 1984. The Grievor has never participated in any ;meaningful aftercare program. While it cannot be said that the Grievor has demonstrated real or substantial recovery, the Board is ,persuaded that the prognosis for rehabilitation is now sufficiently encouraging that this employee should be given one final opportunity to retain his position. On the evidence, the Board is satisfied that the Grievor has made significant progress towards rehabilitation. Accordingly, the Board exercises its authority under Section 19(3) of the Crown Employees Collective Bargaining Act to find that the penalty of discharge is excessive and that a lesser penalty is indeed appropriate in these circumstances. Arbitrator .Shime considered the issue of a lesser penalty in Re Bell Canada and Communications Workers of~Canada (1983), 10 L.A.C. (3d) 285 and made the following relevant comments at p. 288: -7 i -9 - -~. .: ” . . ..where a lesser penalty has been substituted for dismissal, arbitrators have imposed some form of device .to monitor the, : future conduct of the grievor. Such monitoring, .while it considers the Gri;evor'S interest in returning to the work force, is also necessary .in order to protect the '~. employer!s interest in having an employee at work on a regular and consistent bas.is:....” _/ .~~ i . . - In the instant matter, the Grievor'must SuCCeSSfUl lY active complete the aftercare program prior to any reinstatement to employment. Accordingly, the ,Grievor~ shall beg reinstated to his position, without compensation, but without loss of seniority, at a location to be determined by the Ministry 'within a 40 mile-radius of Kakabeka Fall’s Patrol Unit., subject.to the following conditions: ':. (1) The Grievor shall be reinstated to active employment provided that .he~ successfully complete,s a six (6) month-residency at.-Cross Roads Centre Halfway House, .2 .Thunder Bay, Ontario, and is certified asmedically fit to return to work. (2) The Griivor shall, abide by the terms and conditions of the written aftercare program dated April 8, 1987, and shall participafe~ in such other treatment as may be deemed appropriate by the Alcohol Unit Program Co-ordinator at the Lakehead Psychiatric Hospital. .< . . - 10 - (3) If within the two (2) years following the Grievor's reinstatement to active employment he is guilty of work-related misconduct or breach of duty which results directly or indirectly from,the consumption of alcohol, his employment shall be forthwith terminated. (4) The Board shall retain jurir+liction'in the event of difficulty in the implementation of~this Decision including any alleged breach of this conditional reinstatement. DATED at Brantford, Ontario, this 25thday of May, A.D., 1907. R. L. Verity, Q.C. - Vice-Chairman J. ycManus'- Member ~@l?ixbc 8. Roberts - Member