HomeMy WebLinkAbout1986-1424.Walker.87-06-30.
SETTLEMENT
1424186
IN TRB MATTER OF AN ARBITRATION
UNDER
TEE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
TEB GRIEVANCE SETTLBMBNT BOARD
BETWEEN:
OLBRU (Cam Walker)
- and -
TEB CROWN IN BIGRT OF ONTARIO
(Liquor Control Board of Ontario)
J. E.- Emrich
I. J. Thomson
G. J. Milley
Vice-Chairman
Member
Member
FOR TEE GRIEVOR: B. Brown
Counsel
Bicks Morley Bamilton
Barristers and Solicitors
FOR TEE EMPLOYER: M. Levinson
Counsel
Koskie and Minsky
Barristers and Solicitors
BRARING: -April 24, 1987
Grievor
Employer
'..:DECISBON
Cameron Walker, aged 43; was dismissed .from his position as a Clerk 3
assigned to liquor store #198 at Westhill effective December llth, 1986.
The grounds for dismissal are set out in a letter to the Grievor dated
December 10, 1986 from Mr. R.J. Flett, Vice President of the Retail Division
of the Employer. That,letter reads in part:
. . . On Saturday, November 22, 1986, you called
the store to advise them you would be late but were on
_, your way. You failed to report for work and were found
in a local Tavern at 3:00 p.m. offering unacceptable
excuses.
You have a long history of poor attendance and
lateness and had received a final warning in June 1985
that this must improve.
After full consideration of all the circumstances,
I have decided that your employment with the LCD0 is
,terminated as of December llth, 1986.
The grievance alleges unjust dismissal and claims reinstatement with no
-loss of compensation or seniority. Much of the material evidence was not in
dispute and the parties agreed to the following facts:
1)
2)
3)
4)'
From September 9, 1985 to December llth, 1986 the grievor was not
absent from work without leave or late for work.
From September 9, 1985 when he was transferred to Store 198,
Westhill, to the date of his discharge, the grievor was not absent
from work due to illness except as verified by a medical
certificate.
During the time that the grievor worked at Store 198 in Westhill,
his performance in other respects was satisfactory.
On Saturday, November 22nd, 1986, the manager of Store.198 in
Westhill received a telephone'call from the grievor around 9:00
a.m. informing the manager that the grievor had slept in but that
2
he was on his way to work. The grievor's shift was scheduled to
commence at 8:30 a.m.
5)
6)
7)
8)
9)
The grievor did not report to work on Saturday, November 22, 1986.
Throughout the morning the.manager made several attempts to reach
the grievor by telephoning him at his home, but there was no
answer.
At 3:00 p.m. on Saturday, November 22, 1986, the manager, Mr. Way,
telephoned a local tavern named "Leo's" and asked to speak to the
grievor. The grievor came to the telephone.
Mr. Walker advised the manager that after speaking with Mr. Way
that morning, he had waited for a taxicab which did not come and
that he had then returned to his apartment to call another cab,
but had fallen asleep. When he awoke later in the day, he went to
Leo's.
The grievor's transfer to Store 198 in September 1985 was
initiated by the Employer because this store has a late-opening
schedule. Employees on such a schedule work two weeks of shifts
starting at 8:30 a.m. followed by one week of shifts starting at
3:00 p.m. The reason for the transfer was that such a shift
schedule would assist the grievor to improve his record of
lateness and poor attendance. This store provides every employee
with every third Saturday off work.
The grievor's discipline record discloses the following:
May 8, 1984 - One day suspension for reporting to work late on
March 24, 1984 and for failing to report to work
without reasonable excuse on April 7, 1984. .
3
August 14, 15, 16
1984 - Three day suspension for conduct similar to that in
May 1984.
January 7, 8, 9, 10, 11
1985 - Five day suspension for failure to report for shift
on December 1, 1984 with no reasonable explanation.
June 3-15
1985 - Ten day suspension for reporting to work late on
April 13, 1985.
The grievor elaborated in test,imony upon the events of November 22nd,
1986. He identified a~letter he wrote to the store manager, Mr. Way, on
November 26, 1986, which is to the following effect:
It is with regret that I have to write this letter
concerning my absence from duty Nov. 22186.
.My intention was to report to work but I fell back
to sleep and made no further attempt to contact Mr. Way.
As of late I have been under a great deal of.pressure
with regards to my mother's departure and acting as
executor of her estate my family has been very demanding. I realize a suspension would be in order, I
only ask for consideration for reasons mentioned above.
I have of late tried to improve 'my habits over the
last two years and will continue to do so in regards to
my ~past work record.' I am sure you will find Mr. Way
will agree I have made a serious attempt to improve as of late.
The grievor explained that prior to his transfer to the Westhill store in
September, 1985 he had a drinking problem which had caused him to be
frequently absent from, or late to, work. He admitted that at the peak of
his problem, he would drink until he was intoxicated nearly every night.
However, following his ten-day suspension in June, 1985 and transfer to the
Westhill store in September, 1985 he had curtailed his drinking problem.
The grievor asserted that he had done s'o without assistance from an
Alcoholics Anonymous programme, a professional,clinic, or from the
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Employer's employee assistance programme of which he was aware. In cross-
examination, the grievor admitted that his District Supervisor, Mr.
Fletcher, had approached him concerning whether he had a drinking problem,
but the grievor had denied he had any such problem. In cross-examination,
the grievor admitted that since he has been discharged and looking for work
he has been drinking more, becoming drunk once every couple of weeks.
It is against this background that the grievor's narration and
explanation for the events of November 22nd. 1986 must be assessed. While
the grievor claims that he had a good night's rest on Thursday,night and '
went to bed at 10:00 p.m. on Friday. November 2lst, yet he forgot to set his
alarm and was unable to wake in time for his shift on Saturday, November
22nd, 1986 commencing at 8:30 a.m. He stated that he showered and dressed,
then telephoned Mr. Way at 9:00 a.m., following which he went down to the
apartment lobby to await his taxi. After waiting ten minutes, the went back
to his apartment to call another taxi, which he was told would arrive within
ten minutes. .The time was now 10:00 a.m. Rather than'returning to the
lobby to await the taxi, the grievor decided to return to bed. He fell
asleep and slept until 2:00 p.m. Although his shift was scheduled to
continue until 6:00 p.m. and despite knowing that Saturday is usually a very
busy day, he did not telephone Mr. Way either at 10:00 a.m. or 2:00 p.m. At
this point, the grievor decided to go to Leo's tavern to speak to his
brother. At one point in cross-examination, he indicated that he went to
see his brother to collect some money that his brother owed him,'and to tell
him about the cheques being ready from the estate on Monday: but in re-
examination he stated that he went to see his brother just to borrow some
money, which was more consistent with his version of events in chief that he
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had told his brother of the distribution from the estate on Friday night.
'In cross-examination, the grievor explained that although he was paid on
Thursday, November 20th, 1986, he was out of money again on Saturday after ,...
shopping for groceries. The grievor attributes his,over-sleeping on
Saturday, November~%'ina:: tc kxtia&Aon from the stress & acting. as executor
for his mother's estate. The grievor admits that he.acted improperly in not 0
reporting to work on Saturday, November22nd,~ and not keeping his employer
informed as to his whereabouts; but asks this Board to exercise its
discretion to substitute the penalty of discharge pursuant to s.19(3) of the
Crown Employees Collective Bargaining Act R.S.O. 1980 c.108 as amended,
~Counsel for the Union argued eloquently on behalf of the grievor that
from September 9, 1985 to the date of his discharge the grievor had
responded appropriately to the corrective discipline applied inJune, 1985.
The grievor's work performance had been satisfactory and there were no
further infractions for which discipline was imposed for more than a year.
During this time, the grievor had managed to curtail his drinking problem.
Mr. Levinson characterized the grievor's behaviour on November 22nd, 1986 as
a momentary aberration brought on by the stress of handling his mother's
estate. Counsel for the Union stressed that the grievor's clear record for
the period from September 1985 to November 1986 indicates that he is capable
of responding to corrective discipline by conforming to the standards of
conduct expected. In light of the grievor's twelve years of seniority, Mr.
Levinson asked the Board to reinstate the grievor. He cited the following
cases in support of his position: Re Cook and the Crown in Right of Ontario
IMinistry of Labour) (1979) 22 L.A.C. (?a), (Swinton); Re Canadian
Broadcasting Corporation and Canadian Union of Public Employees. (1979)‘23
6
L.A.C. (Zd) 227 (Arthurs); and Re Brunn and Treasury Board (Post Office
Department) (1980) 29 L.A.C. (2d) 103 (Kates).
Raving reviewed the evidence and arguments of the parties carefully,
the Board is of the view that the misconduct of the grievor on November
22nd, 1986 has been established as a culminating incident and that the
Employer was entitled to rely on the grievor's past record in imposing
discipline. Indeed, the Board further finds that the grievor's version of
events strains belief. It is difficult to believe that having had a regular
night's sleep on Thursday night, having gone to bed at ten o'clock'after
drinking only a couple of beers after work on Friday, the grievor would be
SO tired that he would sleep in the next morning until just before 9:00 a.m.
and then fall.asleep so soundly from 10:00 a.m. to 2:00 p.m. that he could
not hear the ~telephone ringing from Mr. Way's attempts.to reach him. If the
grievor were suffering the effects of excessive drinking the night before,
his conduct is more comprehensible. Furthermore, the conduct of the grievor
on November 22nd in~not reporting to work or not notifying the employer of
his whereabouts after 9:00 a.m. represents the repetition of a long-standing
problem which culminated in a series of suspensions of increasing length
from May 1984 to June 1985. The grievor did so despite the incentive in
Article 26(2) of the collective agreement to improve. Article 26(2)
provides as follows:
ARTICLR 26 - EMPLOYEE FILES AND DISCIPLINE
26.2 No discipline against an employee shall be
used in a subsequent disciplinary proceeding
if such prior incident is more than three (3)
years old. '
There was no doubt that the grievor kne; that persistent lateness, or
unreliability in attendance was unacceptable to the Employer and would be
7
treated with serious disciplinary consequences. Indeed he recognizes that
his conduct on November 22nd was similar to conduct for which he has been
disciplined in the past. One cannot ignore that on the grievor's version, %
he knew that he ought to have reported to work at least by 2:GG p.m. on a
busy day.like Saturday; yet he chose ~-'~ neither to report for work nor to
call to notify Mr. Way.. Although the grievor asks the Board to understand
his behaviour as a reaction to the stress of handling his mother's estate,
one would reasonably think that the news on Friday, November 21st that the
distribution from his mother's estate would occur on the following Monday
would have given the grievor a welcome sense of relief rather than cause for
anxiety and exhaustion. While the Board could speculate that the grievor
may be letting slip the reins of control on his admitted drinking problem,
the grievor assures the Board that this is not so. He has not sought.any
professional assistance to deal with his drinking problem and.does not see'
the need for any such intervention even at this juncture. In this respect,
this case differs markedly from the Cook case cited above. In that case,
the grievor had taken concrete steps on his own initiative to participate in
a rehabilitation programme. At the time of the arbitration he had made
significant progress by the date of the hearing. The arbitrator relied on
this evidence of rehabilitation to conclude that there was a reasonable
prospect of improved attendance in the future. Accordingly, the grievor was
conditionally reinstated.
This Board certainly ascribes to a theory of progressive discipline as
embodying a corrective approach to employee misconduct which is responsive
to the rehabilitative potential of employees. In Re Livingston Industries .
and Iht'l Woodworkers of America (1982) 6 L.A.C. (3d) 4 Mr. G.W. Adams, Q.C.
8
notes that the corrective approach to discipline requires a balance between
the employer's interest in a productive workforce and the employee's
interest in having another chance. He comments as follows at p. 9:
However, corrective discipline also assumes~ that as
an employee continues to misbehave the employer's
right,ful and'important interest in having a productive
work place may come to outweigh the employee's
entitlement to another chance. The deliberate use of
incrementally more severe doses of discipline by an
employer enables the parties to document where they
stand and provides important information to the
employee. An employee who continues to misbehave
notwithstanding the application of incremental measures
of punishment provides important evidence that he is
unlikely to learn from another opportunity and that the
employer need not continue,to cope~with him.~
This incremental or corrective approach to
discipline is embodied in the arbitral doctrine of
"culminating incident". This latter principle holds
that where an employee has engaged in a final
culminating act of misconduct for which some discipline
may be imposed, an employer and an arbitrator may
consider a checkered and blameworthy employment record
in determining what penalty is appropriate for the final
incident: see generally, Brown and Beatty, Canadian
Labour Arbitration (1977). para. 7:4310, p. 371. The
doctrine allows the termination of Someone who otherwise
would with impunity commit repeated infractions of
different rules, so long as he did not commit a serious
offence or persist in the same kind of misconduct.
In the Livingston Industries case, the grievor had reached the end of the
company's range of penalties within the span of two~years, despite a lengthy
period of lay-off. The grievor was hired in January 1978 and discharged on
March 11, 1981. At p..l2 of the decision, Mr. Adams comments upon the
significance of a stale discipline provision in a collective agreement, and
concludes that the grievor had demonstrated an inability to conform to the
Company's standards:
In assessing these conflicting considerations, we
think it important that the parties have negotiated a
two-year record clearing system. It provides:
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. ..-___ -- _-.._ ___ _.... ~-- .-.___. ~~---_--._. _... -.__ ~.----_~
All copies of notices of rule infraction given~
to employees which do not result in discipline
by the Company shall be destroyed. All
records of disciplines given by the Company
shall be removed from the records of the
employees as soon as a period of two (2) years
has elapsed after the date of discipline, with
the exception of disciplines received for
'physical violence.
This provision gives employees a real incentive to
correct their behaviour and recognizes that progressive
discipline in this particular work setting is applied
with some rigour. To reach the end of the company's
range of penalties within a two-year period, and a
period which includes a lengthy clay-off, is a strong
indication of an inability to conform to acceptable
standards of conduct.. Considering all,the facts before
us, including the grievor's relatively short service, we
have decided there are'-insufficient mLtigating
circumstances for the substitution of a lesser penalty.
In the instant case, the grievor has managed to produce a substantial
record of discipline for conduct of the same sort as that which occurred on
November 22, 1986. On the one hand, a fifteen month hiatus from.September,
1985 might indicate some rehabilitative potential for the grievor. However
this'inference is counterbalanced by the persistence of this sort of
misconduct in the grievor's record , such that the events of November 22nd
cannot be characterised properly as a momentary aberration. It represents
the recurrence of a pattern of absenteeism and lateness which had marred his
-record before September, 1985. Furthermore, the Board finds that the
grievor despite knowing that he could risk dismissal for further.misconduct
behaved with such gross,indifference to his duty to explain his absence and
notify the employer of his whereabouts, that the reliability of his
jntention to improve his record must be doubted. Finally, the Board, having
regard to the grievor's seniority of t;elve years would have been inclined
to reinstate the grievor conditionally had the grievor been willing to
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demonstrate that he is willing to be more frank and constructive in
addressing the drinking problem which appears to underlie his difficulty at
work. Furthermore, one is left to wonder why the grievor's brother wasnot
called to testify to corroborate the grievor's narration of his whereabouts
on November 22 or his evidence concerning the stress entailed for the
grievor acting as executor of his mother's estate. The grievor ~evidentlp
lives alone and is without dependants and no evidence was adduced of unusual
economic hardship. The Board must conclude that there are insufficient
mitigating circumstances to warrant substitution of the penalty.
For all of these reasons, the grievance is dismissed.
Dated at Kingston, this 38th day of June, 1987.
Jane E.,Emrich'Vice-Chairman
1 I. J. Thomson Member ~~ .~ . .
G. J. Milley Member