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HomeMy WebLinkAbout1994-0285.Mayer.96-11-12mm ONTARKJ CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD EMPLOY& DE LA COLJRONNE DE L’ONTARIO COMMISSION REGLEMENT DES GRIEFS 180 DUN&IS STREET WEST SUITE 2100, TORONTO ON M5G lZ8 180, RUE DUNDAS OUEST; BUREAU 2100, TORONTO (ON) M5G lZ8 DE TELEPHONEiTkLiPHONE : (416) 328-1388 FACSIMILE/TiLiCOPIE : (416) 326-1396 BETWEEN Grievor BEFORE: GSB # 285194 OLBEU # OLB066/94 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OLBEU (Mayer) - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer R.J. Roberts Vice-Chairperson FOR THE GRIEVOR J. Noble Legal Counsel Ontario Liquor Boards Employees' Union FOR THE EMPLOYER J. Baker Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HEARING September 21, 1995 November 29, 1995 December 12, 1995 March 22, 1996 June 17, 1996 1 AWARD I. Introduction: This is a discharge case. On April 7, 1994, the grievor was discharged for being intoxicated on the job. The decision of the employer to discharge the grievor was made after reviewing his previous record of discipline for alcohol-related misconduct. On April 10, 1994, the grievor filed the grievance leading to the present arbitration. At the hearing, it was submitted on behalf of the grievor that he should be reinstated to employment subject to conditions because he had been successfully rehabilitated for his alcoholism problem. For reasons which follow, the grievance is dismissed. II. Factual Background: According to the evidence, the grievor was employed in the manual pallet loading unit of the employer’s Durham warehouse. This was the area where cases of product were loaded onto skids prior to going to the shipping department. The grievor’s job was to remove cases from a conveyor belt and load them onto pallets, 5 cases high. The pallet-loads of cases would then be tied up and sent down for shipment. 2 The grievers’ foreperson, Mr. Collins Richards, testified that on the morning of March 24, 1994, he noticed that the grievor seemed to be taking an excessive number of trips to the washroom. This appeared to be unusual behavior. When the frequency of trips became about one every 15 minutes that afternoon, he decided to check on the grievor. As he stood on top of the manual pallet loading unit to watch the grievor return to his work station, he noticed that the grievor was staggering and taking a lot of time to get to the stairs to the unit. Mr. Richards decided to meet the grievor on the first landing of the stairs. He asked the grievor if he had a problem. The grievor said no. The grievor then asked Mr. Richards if he was trying to accuse him of something and noted that Mr. Richards was his “brother”. This was a reference to Mr. Richards’ being a member of the bargaining unit and, in fact, a second vice president of the union. Mr. Richards replied that he had an obligation as a foreperson and that in the interest of the safety of the grievor and others, it was necessary for the grievor to remain with him on the landing of the stairs and not return to his work station. He then asked his co-foreman, Mr. Comeau, to call the receiving manager, Mr. Greg De Luca, to meet him at the stairs. Mr. De Luca came to the stairs a few minutes later. Mr. De Luca testified that as he approached the grievor and Mr. Richards, he noticed that the grievor seemed to be unsteady on his feet. Mr. Richards was the first one down the stairs to meet him. He told him that he was concerned that the grievor’s condition made him unfit to work in the unit. The grievor came down next, and as he did so, he staggered. 3 Mr. De Luca stood very close to the grievor and asked him if he was feeling alright. When the grievor replied, his breath smelled of alcohol. He said he was okay, but as he did so, his speech was slurred. His eyes were glossy and his eyelids were drooping. Mr. De Luca then asked both the grievor and Mr. Richards to meet him in the office beside the order processing manager’s office, about one hundred and fifty feet from the stairs. He stayed back to watch them as they walked toward the office. The grievor staggered all the way. Mr. De Luca then went to get Mr. Fred Kemp, a union steward, to join the three of them in the office. He told Mr. Kemp that they had a problem with an employee and his presence was required. As the two of them approached the office, Mr. De Luca saw Mr. Harry Povorka, the acting controls manager. He asked Mr. Porvorka to go into the office and strike up a conversation with the grievor to assess his condition. He did so. As this was going on, Mr. De Luca called the maintenance foreperson and asked him to check the washrooms for empty bottles in the trash. None was located. Mr. De Luca then proceeded to meet with the grievor in the presence of Mr. Richards, Mr. Kemp and Mr. Porvorka. He asked the grievor if he felt alright and the grievor said he was fine. Mr. De Luca then asked the grievor if he was taking any medication and the grievor replied that he was not. Then, when asked if he’d been drinking, the grievor indicated that he had a couple of drinks at lunchtime, a couple of beers. At the mention of drinking, the grievor began to get defensive and became almost incoherent. Mr. De Luca could smell the odour of alcohol on him more strongly. 4 At that point, Mr. De Luca said, he told the grievor that he thought that he was intoxicated and as a result, he was not allowed to return to work. He was a risk to himself and others. The grievor became more agitated and began to argue with Mr. De Luca. Mr. De Luca cut his resistance short by telling him that he’d had enough and that he, the grievor, was released from duty for the balance of his shift. Mr. Kemp then advised the grievor that he should follow Mr. De Luca’s instructions and leave the premises. Mr. Kemp and Mr. Richards escorted the grievor to the locker room. Mr. De Luca went to the front reception desk and asked the receptionist to call a taxi to take the grievor home. When Mr. Richards and the grievor came in to the reception area, Mr. De Luca told the grievor that he was formally requested to call him by nine o’clock a.m. on Friday, March 25, and that if he did not receive a call from the grievor, he’d call him. (Friday, apparently, was a scheduled vacation day for the grievor.) Mr. De Luca also indicated to the grievor that he would be issued a formal notice of intent to discipline. The next morning, the grievor called Mr. De Luca. He asked him what the situation was. Mr. De Luca explained that the grievor remained relieved of duty pending completion of the employer’s investigation. To assist in this investigation, Mr. De Luca had already asked all of those other than the grievor who were involved to submit to him individual written statements. On Monday, March 28, 1994, the grievor received by courier a formal notice of intent to 5 discipline. The notice indicated, inter alia, that the grievor had been relieved from duty with pay effective March 24, 1994, and requested the grievor to submit to Mr. De Luca within three calendar days a written response explaining his actions. On the same day, March 28, 1984, the grievor wrote out the following response: Dear Mr. De Luca: This letter is my response regarding your letter to your employee, myself, who is very, very shook up and trembling by all of these accusations. In trying to improve myself by learning additional jobs and doing more than necessary, I have been concerned in my lack of advancement. All of these charges of theft, intoxicated condition, endangerment of health and safety to my co--workers and the inability to perform the tasks which I had completed. Your impeachment of me on theft, endangerment to myself and co--workers, intoxication and inability to perform my assigned tasks is grossly exaggerated and inaccurate. Perhaps I had a beer on my time at lunch but that did not make me unfit for work. I do have a lot of pressure at home with my in-laws in surgery at the hospital and my wife’s physical condition and strong feelings and concerns for them; plus my two young lads sporting activities, our car repair and appliance maintenance; I am slowly resolving all of these. Now I must take time away from this to oust these false statements. I need all the money and more with the large bills piling up. Is there anything I can do without losing work hours that would lessen my much needed pay cheques, to get me in your good books? I plead for your clemency. Your truthful employee, Gilles J. Mayer The grievor represented himself as a hard working, truthful employee who had been falsely accused of being intoxicated on the job and who was unjustifiably being forced to take precious 6 time away from multiple emotional and financial problems to deal with these false accusations. Mr. De Luca discussed this response with the director of the warehouse, Ms. Naseem Glaubitz, and the Human Rights advisor for the warehouse, Mr. John Harris. They decided to have the grievor come in for a meeting with them to discuss his response and ask further questions. The meeting was held on April 5, 1994. In attendance were Mr. De Luca, Ms. Glaubitz and Mr. Bill McDowell, the general manager, operations, on behalf of the employer, and the grievor and Mr. Kemp for the union. The meeting took place in a meeting room in the administrative area of the warehouse. Ms. Glaubitz had a series of questions to ask the grievor. When she asked him whether he was drinking alcohol at the work place, he responded no. When she asked if he had any drinking-related problems, the grievor gave no response. Neither Ms. Glaubitz nor Mr. De Luca could recall any other specific questions that the grievor answered; however, they said that their impression was that the grievor did not give any substantial evidence to help his case. The meeting concluded with the employer representatives notifying the grievor that they would continue relieving him from duty with pay until the investigation was completed, and they would then notify him of their decision. The next day, Ms. Glaubitz, Mr. Harris, and Mr. De Luca met to discuss the incident involving the grievor in light of the results of the meeting. They also reviewed the grievor’s personnel file, which contained all of his performance appraisals, letters of commendation and his disciplinary record. They noted that there were several disciplines recorded in the file for previous alcohol- 7 related offences. In light of these, they agreed that the grievor should be terminated. Both Ms. Glaubitz and Mr. De Luca said that they thought that this was an appropriate disciplinary response, The grievor had been disciplined for previous alcohol-related offences in the warehouse and neither came forward nor showed any desire to come forward to management to ask for assistance in dealing with any alcohol problem. In light of the fact that he had committed a repeat offense related to alcohol, he was a safety risk to others and termination was appropriate. On April 7, 1994, Ms. Glaubitz sent by courier the following letter to the grievor: Dear Mr. Mayer; This letter is further to the notice of intended discipline issued March 28, 1994, your response to same and our meeting of April 5th. During our meeting, you admitted to consuming one (1) beer at lunch and stated that you did not believe that, on March 24, 1994, you were unfit for duty. You further stated that you were pre-occupied with your present personal life and that this was affecting your work and therefore explained your actions and condition on March 24th. Mr. Mayer, as explained to you, your condition on March 24, 1994 is unacceptable. The observations made by several employees such as your incoherent and slurred speech, your inability to walk without staggering and the smell of alcohol on your breath, when combined with your actions at work, can only lead me to conclude that you were in no condition to work on March 24th due to the consumption of alcohol and your ensuing intoxicated condition. As a result, you placed not only your own health and safety in danger but also that of your co--workers. Although there is no evidence of theft, I cannot ignore your previous record of discipline for alcohol related infractions which includes a one (1) day suspension on July 11, 1991 and a five (5) day suspension from November 20 to 26, 1991 inclusive. 8 Based on the available information, I regret to inform you that, effective immediately, your services with the Liquor Control Board of Ontario are terminated. Yours truly, N. Glaubitz Director, Durham Regional Warehouse The grievor was terminated upon consideration of the most recent incident in light of his previous record of discipline for alcohol-related infractions. Before proceeding to consider the evidence of the grievor, it might be advisable to review the previous alcohol related disciplines received by the grievor: On June 26, 1991, the grievor was relieved from duty after reporting late for scheduled overtime and having the apparent smell of alcohol on him. The grievor’s response to the notice of intended discipline from the employer was as follows: I would like to apologize for my tardiness since I was daydreaming in my own personal life while quenching my thirst with a beer across the road from work. Although, I believed I could have handled the job on hand, I accepted your authoritative decision to relieve me from duty of the overtime asked for. I will try to prevent any such incident from happening again. Thank you for your open mind. The grievor claimed he only had “a beer” while daydreaming at a bar across the road from the warehouse. IHe promised to try to prevent such an incident from happening again. He was given a 9 l-day suspension. This was just four months before the next incident, which occurred on October 28, 1991. On October 28, 199 1, the grievor was relieved from duty because he had been observed opening a case of miniature bottles of liquor, took a long unauthorized break and had an apparent smell of alcohol on him. The grievor’s response to the notice of intended discipline from the employer was as follows: In response to your letter dated October 29, 199 1, you had observed the “apparent smell of alcohol” on me. As many other employees, I do have breakage occur, alcohol absorbtion in my quoting. Also, in response to “longer non-authorized break”, I used the men’s facilities before reporting to my work area. In response to your witnessing me ” opening a case of Seagrams V 0 miniatures”, this case was already partially opened and I often open a closed case if it is much lighter than the rest in weight. Many times, due to errors by the manufacturer, they are not a full case and therefore are transmitted to the exam room for correction. With all due respect, I contributed my time and efforts to participate in non regularly scheduled production and I feel I was wrongfully dismissed therefore suffering from a loss of possible wages earned. The grievor’s letter indignantly denied any wrongdoing and presented the grievor as an honest, hard working employee who had been wrongfully accused by the employer. The employer did not accept this response. The grievor was given a 5-day suspension and instructed to contact Mr. Bennett, who ran the employer’s Employee Assistance Program. The grievor told Mr. Bennett that he did not have a drinking problem. This prompted a follow-up 10 letter from the employer dated December 17, 1991, which stated that given the grievor’s response to Mr. Bennett and the fact that alcohol had factored into the last three disciplines against the grievor, the next similar incident would result in more severe discipline up to and including discharge. The grievor gave evidence after claiming protection under section 9 of the Canada Evidence Act and section 13 of the Charter of Rights. The grievor also prefaced his evidence with a claim that his memory had not been good since he was seriously injured in a car accident in the 1960’s. When asked about the incident of October 28, 1991, which led to his five day suspension, the grievor retracted what he had said in his response. He admitted that he did, in fact, do the things of which he had been accused. He also admitted that at the time, the alcohol he consumed was from cases of liquor in the warehouse that he had broken into. He said that he had broken into cases of liquor like this on about a dozen different occasions. As to his response to Mr. Bennett, the grievor agreed that he told him that he did not have a drinking problem. He said that Mr. Bennett asked him whether he thought he should go on a rehabilitation program. At the time, like all alcoholics, the grievor said, he did not believe that he was an alcoholic and so he refused. He told Mr. Bennett that instead, he would go to A A meetings and straighten out his act. From that time onward he went to A A meetings but did so irregularly, sometimes going for months without attending. 11 Upon cross-examination, the grievor admitted that at the end of 1992, he lost his driver’s license because of drinking. He said that this was the reason that he went to see his doctor. It was at this time, he said, that his doctor made him realize that he had a drinking problem. When asked whether he thereafter contacted the employer’s Employee Assistance Program regarding his acknowledged problem with alcohol, the grievor replied that he recalled asking for the telephone number but did not recall using it. Later on in his testimony, however, the grievor was asked on direct whether he was drinking in 1992 and part of 1993. The grievor replied that he didn’t recall if he was drinking. He then stated that he guessed he wasn’t or the employer would have noticed. Turning to the incident that led to his termination in early 1994, the grievor stated that when he wrote in his response that the charges against him were grossly exaggerated and inaccurate, he was stating something that was incorrect. The only thing that was grossly exaggerated, he said, was his claim that he was not intoxicated. The grievor also stated that he drank some L. C. B. 0. alcohol on the date of the incident, March 24, 1994. He said that he didn’t recall what it was. When you are intoxicated, he said, you don’t remember what you drink. It was enough, however, to cause him to show the signs that he had been drinking. The grievor added that when he said at the April 4 meeting that he had consumed one beer that day, he was not being accurate. His mind, he said, was not a sober one. He said that he had taken a muscle relaxer on the morning of the incident and he believed that it impaired him more than 12 one beer could do. He agreed that at the meeting he had denied taking any medication, but did not know why he denied it. He said that perhaps it was to conceal weakness. After that, he had a shot of the employer’s whisky at the workplace as well as a beer across the street. In further testimony, the grievor said that he was pretty sure that he had more than one beer at the restaurant across the street. The alcohol that he drank at the workplace was from breakage, after he intentionally broke some bottles. He said that he drank at the restaurant across the street from the warehouse a lot. It got to be two to three times a week, depending upon his financial situation. As the years went on, he said, it got worse. After he was terminated, the grievor said, he sought treatment for alcoholism at Pinewood in Oshawa, which was a program run by the Oshawa General Hospital. He said that he stayed there for twenty-one days as an in-patient and went home on weekends. At the present time, he said, he still went to Pinewood to participate in a relapse prevention group. The group, he said, gave you a good boost when every week you say you are staying dry. He also stated that he was attending A A meetings as well. When asked whether he had any lapses, the grievor stated that he did not go to Pinewood from August, 1994 to February, 1995 because he was quite involved at home. Then, he began feeling as if he was going to slip. He had the urge to slip back. It was then, he said, that he started back in the next program. 13 Counsel for the union then drew the attention of the grievor to a notation that was made by Ms. G. Campbell, his major counselor in February, 1995. She had made an entry saying that the grievor told her that his lawyer, i.e., counsel for the union, told him to go into long-term treatment before she would represent him. The grievor agreed that this is what he had said to Ms. Campbell. When asked what he would have done if his lawyer had not suggested this, the grievor said that he was looking forward to going back. There were lapses on his part he said, and sometimes he needed a little push to do what he was supposed to do. When the lawyer told him to get into a long-term program, he said, he got on the phone to Pinewood so that he could get in as soon as possible. The grievor further stated that the relapse session had improved his thinking. He said that he didn’t have a thirst for drinking and didn’t even think about it. He added that he was getting to hate it for all the trouble, pain and expense it had caused him. He said that he felt that he’d benefitted from the Pinewood program and he planned to continue on in relapse prevention. According to the grievor, since his termination in April, 1994, he’d had an alcoholic drink only once. He said that he could not recall the occasion. He did not know if a relative dropped in, or someting similar had occurred. He said he had a beer to be a “host”, he guessed. He said that he guessed that he didn’t want to show them that he had a drinking problem. He did limit it to one drink. He added that he had not been drinking recently, although he kept alcohol around the house all the time. The alcohol was for show. He didn’t touch it. 14 Upon cross-examination, the grievor was asked whether he ever consumed alcohol in the gap between treatment programs of August, 1994 to February, 1995. After pausing for several moments, the grievor responded that he could not recall if that was the one time he had the one drink when the relative came over. He said that he did not go on a binge, although he had a lot of urges. He over-worked himself, he said, to avoid thinking about drinking. The grievor was also asked upon cross-examination whether he had lost other jobs because of alcohol consumption. To this, the grievor replied, “no”. Then, upon re-examination, counsel for the union drew the attention of the grievor to a May 3, 1995 clinical note from Pinewood in which the counsellor recorded the grievor as stating that he lost all of his other jobs due to alcohol use. He was asked whether the note was correct or incorrect. The grievor initially stumbled in his response and then said that he did not believe that the statement as written was correct. He said that if you went back to his previous employers, you would find that he never did lose jobs due to alcohol. He said that perhaps at the time he was using alcohol as an excuse for his predicament. Finally, the grievor was asked upon cross-examination whether he had ever been charged with assault as a result of drinking. The grievor replied that he’d never had any squabbles or fights at work whatsoever. Outside of work, he had. He said that the fights were possibly due to his alcohol problem at the time, but that did not mean that alcohol was the reason. He said that alcohol probably brought up the pressure. He added that there was no body contact. 15 When asked on direct about his current situation, the grievor stated that he was married, with two teenaged sons. His finances, he said, were grave. He worked part-time at Goodwill Industries of Toronto and had been there approximately one year. His wage was about seven dollars per hour. His wife did not work, but they did have students who stayed with them as boarders. The grievor stated that if reinstated, he would not break any rules. He said that he’d seen what it had done to him so far. When asked why anyone should believe him, the grievor replied that he guessed he’d just have to show by example. He stated that he had proof at home. There was liquor at his place all the time and he had no desire to have any. If he could do it at home, he stated, he would do the same thing at work. When asked whether he would drink at the restaurant across the street from the warehouse, the grievor replied that he would not drink there, unless he went there to eat. Then he corrected himself, saying that he would not drink there at all. Why, he asked, would he put his foot in the snare? The grievor then said that he’d had a year’s practice being around alcohol and not drinking. He had boarders there that drank and they had offered him drinks and he refused them. He said that he didn’t even yearn for drink because it had caused him too much agony. He wanted his job back as soon as possible because he needed the money and the benefits. If he didn’t get it, he said, he would be in dire financial straits. 16 Also called to testify on behalf of the grievor was Mr. Christopher Sen, an addiction counselor at the Pinewood Centre in Oshawa. Mr. Sen had been at the Centre for about three and a half years and had performed assessment, referral and case management duties. Prior to that, Mr. Sen had worked primarily in children’s services, mediating issues and problems arising in families with teenaged children. He had-a Bachelor of Social Work degree as well as a Bachelor’s degree in Social Science. He also had other training in the addictions field, primarily comprising upgrading courses in pharmacology, concurrent disorders and addiction management. After Mr. Sen completed detailing his professional background, counsel for the union requested that he be recognized by the Board as qualified to give opinion evidence regarding the grievor’s rehabilitative potential and success. Mr. Sen was so recognized. Mr. Sen stated that he first saw the grievor on June 30, 1994. At the time, Mr. Sen was covering for Ms. Gwynna Campbell, who was on vacation. The grievor requested entry into the Pinewood Centre’s 2 1 -day rehabilitation program. This was a program that focused on lifestyle change, based on adapting the client’s coping mechanisms to healthier choices. The grievor was accepted into this program. Upon cross-examination, Mr. Sen was asked a number of questions about the referral form that was filled out for Mr. Mayer on that day. He agreed that the form indicated that the grievor had received previous treatment for alcoholism in a residential 28-day program in North Bay some eight years earlier. The grievor’s assessment sheet indicated that after going through this 17 program, the grievor did not use alcohol for six to nine months. Mr. Sen also agreed that the referral form stated that the grievor had been temporarily laid off by the employer. The clinical notes for June 30, 1994, he agreed, indicated that the grievor stated that he had consumed four to five pints of beer over three days in the previous month and a half. According to Mr. Sen, the grievor started in the program on July 11, 1994. He stayed as a resident in the first week. As to the remaining two weeks, he requested to come in on a day-care basis, living at home and commuting to Pinewood. This request was granted. During the three weeks of the program, Mr. Sen said, he was not the primary worker for the grievor. That person was Ms. Gwynna Campbell. He became more closely acquainted with the grievor on February 21, 1995, when the grievor entered the relapse prevention group that he was conducting; however, he was not the grievor’s primary worker until August, 1995, when Ms. Campbell decided that he’d be better able to deal with the grievor and the lawyer from the union. Although Ms. Campbell was not called to testify, her reports indicated that the grievor successfully completed the program. Ms. Campbell’s clinical notes indicated that on August 16, 1994, she contacted the grievor according to established routine to evaluate his progress. He stated that he had maintained sobriety since leaving the program, although he was experiencing some marital problems. Her notes further indicated that on February 17, 1995, the grievor requested and attended a case management session. He stated, inter alia, that his lawyer suggested that he go into long term 18 treatment before she would represent him. The grievor was given a list of agencies that provided long term care as well as a description of Pinewood’s own relapse prevention program. The grievor was requested to discuss these with his lawyer to see which would be most suitable, and then have the lawyer get back to Ms. Campbell. On March 1, 1995, Ms. Campbell made the following notation in the clinical notes for the grievor: [Llawyer for the union called writer re Gilles drinking history. States . . . [the grievor] is trying to get his job back - and Ms. Noble is looking for some kind of assurance that he indeed is not drinking and has rehabilitated himself. Advised her that Gilles did not tell me directly that he had been fired from work due to drinking on the job - writer stated [the grievor’s] focus . . . [during] the [initial] assessment was . . . [his] assault charge and being separated from his family. Advised Ms. Noble that I would contact Gilles and have him come in to update what has been occurring since our conversation February 20, 1995. . . . From the grievor’s initial assessment in May, 1994 to March, 1995, the grievor had never disclosed to Ms. Campbell that his main focus in seeking rehabilitation was to get back a position that he had lost due to drinking on the job. On February 2 1, 1995, the grievor commenced attending the relapse prevention program conducted by Mr. Sen. According to Mr. Sex-r, this was an educational group that talked about the pitfalls to be aware of in recovering and maintaining abstinence. The tests that the grievor completed soon after the outset of this program indicated that in the past 12 months, the grievor had a low level of alcohol dependence but substantial problems as a result of his drinking. These tests, Mr. Sen said, were based upon self-reported data -- as were all of the assessments made by 19 him and the other counselors. The grievor attended 14 weekly therapy sessions, constituting phases 1 and 2 of the relapse prevention program. On August 15, 1995, the grievor began another program. Mr. Sen said that the grievor was very punctual in his attendance and never missed any sessions. He was always appropriate and took the groups seriously. On November 2, 1995, the grievor joined yet another relapse prevention group. Mr. Sen added that as of the date of his own testimony (December 12, 1995), the grievor was in a structural relapse prevention program being led by him. Normally, Mr. Sen said, clients did not return for service like the grievor did. When the grievor commenced attending phase 2 of the relapse prevention program on May 3, 1995, he made some comments which were recorded in Mr. Sen’s clinical notes as follows: [The grievor] . . . stated that he was under a tremendous amount of pressure to get a lot of money to save losing his house. He says that he is also trying to get his job with the L C B 0 back. He says he is committed not to drink as he has lost all his jobs in the past due to alcohol use. He stopped drinking due to court intervention and what has helped him very much is staying away from his drinking friends. The grievor said that he had lost all of his previous jobs due to alcohol use. When asked for his impression of the grievor’s rehabilitation, Mr. Sen said that in his work with the grievor, he found a stark difference from the stereotyped presentation. Referring to the latter, he said that many persons with alcohol problems were in some sort of denial and didn’t see the 20 problems of their drinking as others did. He said that he heard, “I have it under control,” over and over again. By contrast, Mr. Sen said, the grievor was open to accept that he did have a problem with addiction. His addiction was sparked by excessive stress and no coping mechanisms to deal with it. The grievor had been very open, he said, and appeared to be honest. Expanding upon the grievor’s honesty, Mr. Sen indicated that he had worked with clients who would do anything or say anything to get their jobs back. This was not so with the grievor. It did not appear to Mr. Sen that he was fabricating information or covering up. In group, the grievor always admitted to how much stress he was under. If a person in group denied that, he said, he had not changed his own approach to his lifestyle. Mr. Sen also commented upon the grievor’s good attendance record and punctuality. Generally, he said, if a client began to backslide, his attendance would slack off and he would become very secretive. The rule of the group was that members had to be abstinent for 24 hours before the group or leave it. This rule never came up with the grievor. Based upon the information that the grievor self-reported and his experience with the grievor in the group, Mr. Sen said, these were suggestive of development in the grievor of control over his alcohol problem. When asked upon cross-examination how likely it was for the grievor to revert to his old pattern, Mr. Sen responded that the grievor stated when he came in that he was drinking two to three. 21 drinks per day. In group, two years later, the grievor would reply “no” when asked if he had any craving for drink. There was quite a difference between the two. The grievor had improved considerably regarding his consumption of alcohol. As to the availability of liquor in the workplace constituting a problem, Mr. Sen said that the grievor would have to remain cautious and aware. When counsel for the employer pressed Mr. Sen about the fact that when the grievor was fired he had consumed alcohol that was available at work, Mr. Sen responded that the grievor had been around available alcohol for the past two years and had opted not to use it as a coping mechanism. Pinewood, he said, usually stayed in contact with clients for five to six months. It had been in contact with the grievor for two years. He had been under a microscope for a much longer period. It did not appear to him in group, Mr. Sen said, that the grievor was consuming alcohol in all that time. At the end of Mr. Sen’s cross-examination, however, he was forced to make a striking admission. Counsel for the employer had found that on two different copies of the clinical notes that had been provided to her, Mr. Sen’s note for August 16, 1995, differed. On one, the note said: Gilles attended the last session tonight of R P II stating he was doing well that he has been sober for many months and feels confident about himself. He stated he felt he learned a lot from other people’s experience. On the other copy, the note was far more extensive. It said: 22 Gilles attended the last session of R P II tonight stating he was doing well. He stated he had been sober now for many months and feels confident about himself. He stated that he was grateful to have attended R P II as he felt that he learned a lot from other peoples’ experiences. Gilles has been a very positive and consistent member of the group and has demonstrated strengths in the area of stress management or tension reduction. He has shown interest in attending an R P III group if one starts up. The note added comments about the grievor’s positive and consistent membership in the group and his demonstration of strengths in the area of stress management or tension reduction. When counsel for the employer asked him to explain how this happened, Mr. Sen conceded that he had taken out the original page of the clinical notes, which contained the shorter entry for August 16, and had elaborated on a new page. He said that he did so because he wanted to write down things that would be to the grievor’s benefit in his grievance proceeding. No further witnesses were called on behalf of the grievor. III. Issues: In their submissions at the completion of the evidence, counsel for the parties raised the following issues: (1) Whether the discharge of the grievor in April, 1994, was for just cause; 24 was an incorrigible employee who had to be terminated. It was stressed that there was evidence to indicate that the grievor was punctual and a good worker with no chronic absenteeism problem. The grievor was not a problem employee all the time, it was submitted, but an employee who did his job with isolated incidents of misconduct. I have no hesitation in concluding that in the circumstances of the present case, termination was well within the range of reasonable disciplinary responses to the grievor’s misconduct. The two prior incidents of alcohol-related misconduct were not so distant in time as to have no bearing upon the disciplinary response of the employer to the final incident of misconduct. Moreover, the grievor’s response to the employer’s notice of intent to discipline could not have helped but reinforce the conclusion of the employer that he, indeed, was an incorrigible employee who should be terminated. Despite overwhelming evidence that he was severely intoxicated on March 24, 1994, the grievor represented himself to the employer as a hard working, truthful employee who had been falsely accused of being intoxicated on the job and who was unjustifiably been forced to take precious time away from multiple emotional and financial problems to deal with these false accusations. This could only have clinched the impression in the mind of the employer that further corrective discipline would not work and termination was the only appropriate response. (2) Post-Termination Evidence of Rehabilitation: Referring to Company Miniere Quebec Cartier v. United Steelworkers ofAmerica, Local 6869 25 (1995), 125 D. L. R. (4th) 577 (S. C. C.), counsel for the employer submitted that it was beyond my jurisdiction to consider post-termination evidence of rehabilitation upon the question whether the grievor should be reinstated to employment. This issue was addressed in a prior award of this Vice-Chair in Re Pluska and Liquor Control Board of Ontario (1996), G. S. B. No. 1322194 (Roberts), since reported at 54 L.A.C. (4th) 193 (1996). In that award, I said, in pertinent part: It seems evident that where dismissal is imposed in the form of a disciplinary penalty, an Ontario arbitrator or the Grievance Settlement Board has statutory jurisdiction to substitute a lesser penalty for a “just cause” dismissal if in all the circumstances it appears just and reasonable to do so. The circumstances to be assessed by the arbitrator include post-termination evidence of rehabilitation. . . . 54 L. A. C., at 200. It was concluded that in the case of a disciplinary dismissal, the Grievance Settlement Board possessed jurisdictional to substitute a lesser penalty based upon, inter alia, post-termination evidence of rehabilitation. In the present case, the grievor was terminated as a matter of discipline. According to the conclusion I reached in Re Phka, supra, I am entitled to consider post-termination evidence of rehabilitation in such cases to determine whether it would be just and reasonable to substitute a lesser penalty for the discharge. I am inclined to adhere to the same view in the present case, and accordingly, this issue is resolved against the employer. 26 (3) Substitution of a Lesser Penalty: Counsel for the employer submitted that, in any event, the post-termination evidence of rehabilitation was not credible enough to support a finding that it would be just and reasonable to substitute a lesser penalty for the discharge. The evidence of Mr. Sen was shown to be the evidence of a person acting as an advocate for the grievor and not the objective evidence of an independent third party. The evidence of the grievor was not that of a truthful person who had sincerely recognized his accountability for his own misconduct. In short, it was submitted, the evidence of these witnesses failed to provide any credible assurance that if reinstated, the grievor would not repeat the same misconduct. Counsel for the union submitted that the post-termination evidence of rehabilitation was sufficiently credible to justify substituting a lesser penalty. She stressed that in this evidence, the grievor admitted that he had consumed L. C. B. 0. alcohol at work in the incident leading to his discharge, even though the employer did not have any proof of this. The grievor also admitted that he had probably done so a dozen times before that. While this evidence did not make the grievor look good, it was submitted, it demonstrated that the grievor was giving honest testimony and that this honesty was a sign that the grievor was on the road to recovery. As to the evidence of Mr. Sen, counsel disputed the assertion that he became an advocate for the grievor. It was submitted that in his testimony, Mr. Sen attempted to remain objective, giving a reason for each opinion. 27 After carefully reviewing the evidence of Mr. Sen and the grievor, I am inclined to agree with the submission of counsel for the employer that it fails to provide any credible assurance that if reinstated, the grievor would not repeat the same misconduct. In light of this, it perhaps goes without saying that it would not be just and reasonable to substitute a lesser penalty for the discharge in the present case. Turning first to the evidence of Mr. Sen, the significance of his actions in surrepsticiously altering his clinical notes for the purpose of assisting the grievor in his grievance proceeding cannot be ignored. His actions coloured with the taint of advocacy all of his testimony. The opinions that he gave on the witness stand cannot be regarded as objective in nature. It must be concluded that they were the opinions of a man who regarded his role as one of supporting the grievor in achieving his objective of gaining reinstatement to his employment. Perhaps this is not surprising, given that Mr. Sen’s role in counselling the grievor at Pinewood was to be supportive of his client. Another aspect of this role was to take at face value much of the information that the grievor self-reported in his documentation and group sessions. The main indicator of the veracity of this information, Mr. Sen said, was the excellent attendance and punctuality record of the grievor in sessions, because these tended to slide when a client had resumed abusing alcohol. I note from the evidence, however, several examples suggesting that the information that the 28 grievor self-reported to Pinewood might not have been so credible. The most glaring example of this was the assertion of the grievor at the outset of phase two of the relapse prevention group that he had lost all of his previous jobs due to alcohol use. When asked about this at the hearing, however, the grievor denied that he had lost any of his previous jobs because of alcohol. He said that if you went back to his previous employers, you would find that he never did lose jobs due to alcohol. He also said that perhaps at the time he was using alcohol as an excuse for his predicament. Another example that is worthy of mention was the misrepresentation by the grievor of his reason for seeking rehabilitation at Pinewood. Initially, the grievor stated that he had only been laid off from his job and he was seeking rehabilitation because of an assault charge and being separated from his family. The real reason for his presence at Pinewood was not known until the lawyer for the union told Ms. Campbell in February - March, 1995, that the grievor was in rehabilitation because he had been discharged for drinking on the job and was trying to get his job back. It seems noteworthy that shortly after that, Ms. Campbell stopped being the grievor’s primary worker. Turning to the grievor’s punctuality and attendance at group sessions, these cannot be credited with the significance that Mr. Sen apparently gave them. It is noted that according to the evidence, even when the grievor was drinking he managed to maintain a good record for attendance and punctuality at work. It would seem to be reasonable to infer that the same would hold true in the case of the group sessions. 29 This brings me to the credibility of the evidence given by the grievor at the hearing. I agree that, as counsel for the union stressed in her submissions, the grievor voluntarily made some admissions about drinking L. C. B. 0. alcohol at work and conceded that the employer’s version of the events leading to his discharge was much closer to the truth than his response . I cannot, however, consider these admissions to be a conclusive demonstration of the credibility of the entirety of the grievor’s evidence. There were too many other indications that the grievor was not being straightforward and honest in his testimony. For example, the grievor represented in his evidence that he contacted Pinewood about going into its relapse prevention program in February, 1995, because he began feeling as if he was going to slip. It seems clear from the clinical notes at Pinewood, however, that the real reason that he sought relapse protection treatment was that counsel for the union refused to represent him in his grievance proceeding if he did not do so. It was not his idea to return to Pinewood. The grievor also represented in his evidence that when he sought treatment for alcoholism at Pinewood, he stayed there for twenty-one days as an in-patient and went home on weekends. According to the clinical notes and Mr. Sen’s evidence, however, the grievor only stayed as an in-patient for the first week of the program and then at his own request, he was permitted to attend as a day-patient for the remaining two weeks. During this time, he lived at home and commuted to Pinewood on a daily basis. 30 In addition, there were significant discrepancies in the evidence regarding the grievor’s consumption of alcohol both before and after his termination. The grievor was asked on direct examination whether he was drinking in 1992 and part of 1993. The grievor replied that he didn’t recall if he was drinking. He then stated that he guessed he wasn’t or the employer would have noticed. Upon cross-examination, however, the grievor had to admit that at the end of 1992, he lost his driver’s license because of drinking. The grievor also testified that since his termination in April, 1994, he’d had an alcoholic drink only once. Upon cross-examination, the grievor was asked whether he ever consumed alcohol in the gap between treatment programs from August, 1994 to February, 1995. The grievor responded, inter alia, that he could not recall if that was the one time he had the one drink. The clinical notes for June 30, 1994 and May 3, 1995, told a different story. The June 30 note said, “Gilles states he has drunk 4 pints-5 pints of beer over three days in the last month and a half.” The May 3 note said that the grievor “stated he had been sober for 1 l/2 months.” Mr. Sen said that the latter note meant that the grievor had not taken any alcoholic drink in that time. This leads to a strong inference that in the period immediately preceding those 1 l/2 months, the grievor had consumed alcohol. In light of the credibility problems in the post-termination evidence of rehabilitation, I must conclude that this evidence fails to provide any reasonable assurance that the grievor is, indeed, rehabilitated. In the absence of credible evidence of rehabilitation, the conclusion seems inescapable that it would not be just and reasonable to substitute a lesser penalty for the 31 discharge of the grievor. (4) The Ontario Human Rights Code: Referring to Re Samuel, Son & Co. and United Steelworkers of America, Local 6398 (1995) 50 L. A. C. (4th) 321 (Clement), counsel for the union submitted that the employer had failed reasonably to accommodate the grievor’s illness of alcoholism as required under the Ontario Human Rights Code. In this submission, counsel stressed that the grievor was terminated when it ought to have been clear to the employer that he had an alcohol-related problem and he required accommodation. Instead of terminating the grievor, it was submitted, the employer should have offered him a treatment program and time to think about his misconduct with a warning that if he did not accept rehabilitation, he would be terminated. Counsel for the employer submitted, on the other hand, that at the time of termination, there was nothing in the grievor’s behavior to indicate that he even acknowledged that he had an alcoholism problem, let alone any recognition on his part that he needed rehabilitation. In this submission, counsel referred to the nature of the grievor’s written response to the employer’s notice of intent to discipline and his behavior at the subsequent meeting with the employer, when he had union representation. Counsel also referred to the fact that twice before, the grievor had been referred to the employer’s Employee Assistance Program and in both cases he denied that he had a problem. Nothing good happens in terms of rehabilitation, counsel submitted, until an employee recognizes that he has a problem. In light of the failure of the grievor to recognize this, the 32 employer acted reasonably and in compliance with the Human Rights Code. I accept the submission of counsel for the employer. At the time of termination, the grievor gave no indication to the employer that placing him in a treatment program would have any reasonable chance of successfully rehabilitating him in the foreseeable future. Instead of demonstrating that he recognized that he had a problem and was willing to change, the grievor misrepresented himself to the employer as the victim of a false accusation that he was intoxicated on the job. In previous alcohol-related incidents, the grievor had been referred to the employer’s Employee Assistance Program and had refused help, advising Mr. Bennett that he did not have a problem. In light of the faint hope of success presented by the grievor, it must be concluded that the employer acted reasonably and in compliance with the Human Rights Code in terminating him. I also note from my own perspective that the grievor said in his testimony that in late 1992, when he lost his driver’s license due to alcohol-related misconduct, he was made to realize by his doctor that he had a problem with alcohol, but even then, he did not seek treatment through the Employee Assistance Program or any other program. The grievor said that he thought he asked for Mr. Bennett’s telephone number but did not go any farther. A disease of the will cannot be overcome without the exercise of willpower. The grievor’s conduct indicated that this willpower was sadly lacking. Even now, there is no credible evidence before me of any likelihood of improvement in the grievor’s condition in the foreseeable future. See Re Samuel, Son & Co., sup-a, at 332. 33 IV. Conclusion: The grievance is dismissed. Dated at Toronto, Ontario, this (2 day of November, 1996.