Loading...
HomeMy WebLinkAbout1989-0149.Thompson.90-05-24 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEE$ DEL'ONTARIO GRIEVANCE C,OMMISSION DE SE'n'LEMENT REGLEMENT BOARD DES GRIEFS lBO DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO, MSG ~Z$ TELE~"fONE/T~L~Pt.~ONE,* (4 ~Sj 326- 180, RUE DUNDAS OUEST, BUREAU 2~, TO~ONTO ~ONTA~tO), MSG 1Z8 FACStMILE/T~L~COPJE .. (4 ~6) 325- 149/89 IN THE, HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Thompson) Grievor - and -- The Crown in Right of Ontario (Ministry of Community & Sociai Services) Employer - and - BEFORE: T.H. Wilson Vice-Chairperson P. Klym Member A. Merritt Member 'FOR THE B. Rutherford~ GRIEVOR: Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE S. Patterson EMPLOYER: Counsel Ministry of Community & Social Services BEARING: April 4, 1990 Decision The Grievor was a Residential Counsellor at the Huronia Regional Centre in Orillia, Ontario. He was dismissed for the use of excessive force on three occasions all within the time period before and after Christmas 1988 and involving residents in the facility. He was dismissed by letter dated March 3, 1989. The hearing before this Board was concerned solely with whether the discretion this Board has under Subsection 3 of section 19 of the Crown Employees Collective Bargaining Act should be exercised in favour of the grievor. That discretion is specifically limited in such circumstances under subsection (4). We first set out those provisions. 19 (3) Where the Grievance Settlement Board determines that a disciplinarypenalty of dismissal of an employee is excessive, it may substitute such other penalty for the discipline or dismissal as it considers just and reasonable in all the circumstances. (4) Where, in exercising its authority under subsection (3), the Grievance Settlement Board finds that an employee who works in a facility, (a) has apDlied force to a resident in the facility, except the minimum force necessary for self~defence or the defence of another Derson or necessary to restrain the resident (b) has sexually molested a resident in the facility, the Grievance Settlement Board shall not provide for ~he employment of the emDloyee in a position that · involves direct responsibility for or that provides any opportunity for contact with residents in a facility, but the Board may Drovide for'the employment of the employee in another substantially equivalent position. 2 '(5) in subsection (4) (b) "resident" means a person who is an inmate, patient, pupil or resident 'in or' detained or cared for in a facility . There is no.dispute as to the facts in this case. The Grievor pleaded guilty in Provincial Court (Criminal Division) on September 22, 1989 to two counts of Level 1 assault (Section 266 of the Criminal Code of Canada). The Crown proceeded on'these counts by indictment. The facts arenas follows as to these events: The facility involved is a residential facility'for adults who are suffering from a mental hand£cap. The grievor was working on a floor of a three floor residence, known as Cottage D1. This particular cottage has residents who are particularly difficult to deal with due to behavioral difficulties. For example, many of the residents are incontinent; they make messes when they eat; they engage in aggressive behaviour; it is apparently a difficult place to work. However, people working in that cottage are well aware that that is the sort of resident that they are dealing with. During the relevant period, relating to one of the assaults, the residents were being showered and dressed for breakfast one morning at about seven o'clock and one resident, X had not followed the grievor's direction in relation to that procedure.. The grievor ran up to the resident and Jumped on him, knocked him ~to the floor, and then punched him several times in the stomach and face. The resident 3 did not resist. He tried to escape from the grievor, but was not able to do' so. At a time later in the month, on or about the same time though, there was an occasion when that same resident was going to the laundry room in order to clean up as he had defecated on hi'self and he was being taken there by a staff member, Connie Latour. As they were en route to the laundry room, the defendant met them and kicked X in the head and X fell to the ground. Apparently, the grievor was angry because-the resident had soiled himself. With respect to an incident concerning the second resident during the period between December 25, i988 and January 1, 1989 this resident, Y, was ~umping up and down and making some loud noises. The grievor who apparently had expressed before frustrations with this particular type of behaviour demonstrated by Y, apparently lost his temper, jumped out of his chair and punched Y in the face. Y stopped making a noise and remained quiet for a substantial period of time. By letter dated March 3, 1989 the Administrator of the Huronia Regional Centre relying on these three above described incidents and characterizing them as excessive force in dealing with clients 4 concluded: "Your behaviour is totally unacceptable and you have violated the Ministry's Standards of Conduct and Disciplinary Guidelines respecting abuse of residents. I have therefore concluded that you have abused your position of trust with Ministry clients and you can no longer be employed in a facility providing care to developmentally handicapped individuals. It is my View that as a result of your behaviour your employment must be terminated. In accordance with section 22(3) of the Public Service Act I am therefore dismissing you from employment at the Huronia Regional Centre, effective March 3, 1989." Union Counsel agreed at the hearing that a prima facte case has been made out by the Ministry. The issue was whether the penalty of dischgrge should be mitigated in the circumstahces. The grievor testified. He informed the Board that since this dismissal he has had two 3obs. At the date of the hearing he had a 3ob as a glass 'installer with a company in Orillia. Prior to that for five weeks he had worked as a scoreboard installer in a gymnasium. But after his sentencing hearing in Provincial Court in January 12, 1990 the employer refused to accept his telephone calls. The grievor assumes that this may have been due to the media coverage of his case. The grievor received a one year suspended sentence and one year's probation. No fine was imposed. The grievor testified thatthe judge stated that due to the loss of pay and extensiVe media coverage the grievor had paid enough. 5 The grievor had been a Residential Counsellor II at ~uronia Regional Centre at D1 Cottage which he stated had formerly been called "O" Cottage. The grievor had no previous disciplinary record. He testified that prior to these incidents his supervisors had appraised him as dealing with disturbed residents in a calm, quiet, effective manner. Prior to becoming a Residential Counsellor II at Huronia, the grievor had worked at Prince Edward Heights in Picketing for five years. That is a facility for the mentally handicapped. He had started there in October 1981 as a Residential Counsellor Assistant unclassified. While there he successfully completed the Developmental. Service Worker course at Loyalist.College in Belleville. The grievor testified that the assaults were easily the worst thing he had ever done in his'life, that it was not his intent to harm them, that he truly liked them and enjoyed being around them and working with them. At the time of the assaults, there was a build-up of personal problems and stress of working in D1. A great deal of it had to do with the time of year, that is the Christmas and New Year's period. The grievor stated that he does not particularly enjoy the holiday season because he has no one to share it with. The grievor is a 32 year old bachelor. He would be going home to an empty apartment and consequently was drinking heavily at the time. He testified that he drank every night and quite often at work. He further stated that his co-workers were aware of his consumption of alcohol at work. In his opinion, the 6 heavy drinking made him aggressive and caused his low tolerance. He was working 12 hour shifts and volunteered to work Christmas Day although he was in fact scheduled to be off work. He explained that he considered Christmas to be a day for married people with children. On Christmas day he took out the resident he was in charge of and took him along with some other residents toboggoning with a toboggan he had purchased for that resident. Union Counsel asked the grievor if at'the time of the hearing he was still drinking heavily, he replied that when he was discharged he "went on the wagon" for about four months but admitted he has since resumed drinking. He stated that he was prepared to undergo therapy for his alcohol addiction and also for his aggressiveness and inappropriate anger. He even stated that he was prepared to take a position that was less than equivalent to his former position. He expressed that he was sorry it had happened that he had hurt residents and also thus hurt and let down his' own family and friends. For the first Christmas in about five years he did spend the past Christmas with his parents who live in the Picton area. In cross-examination, the grievor testified that he first' began drinking heavily in 1986 when he moved to Orillia. In that period, he was drinking on a daily basis "upwards of 12 to 15 bottles~of beer". In the Christmas 1988 period he began taking a bottle of rye to work with him either 26 ounces or 40 ounces and 7 would consume on the 3ob 3/4 of a 26 ounce bottle or half of a 40 ounce bottle i.e. about 20 ounces. I note that this would represent approximately a doubling of his alcohol consumption assuming that one bottle of beer is equivalent to 1 1/2 ounces of 40% whisky. The union called three character witnesses. Ken O'Brien is an assistant Supervisor (Residential Counsellor 3). That is a bargaining unit position. He began work at the Huronia Centre in 1970 and has 20 years service. (There was a break in his service.) He is a member of the Royal Canadian Legion and sits on the Board of Directors for Legion Minor Baseball (children ages 7-14). He also iS on the Board of Directors for the City of Orillia for the Canada-U.S. games, Orillia is twinned with Auburn, New York and he is co-chairing the Parade Committee and is chairman of adult sports. O'Brien has known the grievor for between three and a half to four years. They met originally playing baseball'.. Over the years he and the grievor became friends. O'Brien testified that through people he knows, the grievor is well respected and liked. The grievor has done volunteer work for the Legion, such as selling poppies, collecting money for the Salvation Army and has on occasion helped coach the children's baseball'. He also testified that he was aware of the grievor's heavy drinking. O'Brien has also dealt with residents like those on D1. He felt that there is a positive aspect when one can show progress with them. The 8 negative aspect of it is that it is very stressful. Over a period of time one can become stressed out without being aware of it. Wayne Murdock, is a Regional Counsellor 2. He has 13 years of service and works in a unit that has five highly disturbed residents (mentally handicapped). He also has known the grievor for about five years and again got to know him through playing baseball. He is a member of the Royal Canadian Legion and of the Orlll~a Fish and Game Club. He is a co-chairman of the rifle range of that club. He described the grievor as one of his closest friends. He testified that the grievor's reputation On the community is one of being well-liked; that he gets involved and that he is respected and admired. Dennis McMaster is a Residential Counsellor 2 at Prince Edwards Heights at Picton and has been there for 13 years. He is the secretary for the local baseball association and a member of the local golf and country club. He met the grievor through some friends who participate in sports around Picton. He 'and the grievor become close friends. The grievor worked originally at Prince ~dward Heights as a summer student but when McMaster first met the grievor, the grievor was working selling cars. McMaster encouraged him ~to consider entering the field of working with the developmentally handicapped. McMaster testified that with respect to his reputation in the Picton Community, the grievor was well received. He was best known through the sports aspects. But it 9 is a small town and the grievor was known by almost everyone. The Ministrysubmitted that the dismissal should be upheld and that the Board should not substitute a lesser penalty. It drew the Board's attention to a number of arbitration decisfons. In Government of the Province of British Columbia and British Columbia Employee's Union (1980), 26 L.A.C. (2d) 71 the British Columbia Public Service Adjudication Board held that dismissal in the case of abuse before it was not excessive or unreasonable. The reported version of the Award does not set out the details of the specific abuse-involved. Although described as a "serious incident of patient abuse", there was no actual physical harm to the person of the patient in that case. The grievor had a long career as a psychiatric nurse and there was no previous disciplinary record. Mr. Hope for the Board states at page 72: "In ordinary circumstances one would anticipate an obligation on the part of the employer to show a pattern of conduct substantially beyond the incident proven as a basis for discharge. In the usual circumstances an arbitrator looks for evidence of behaviour incompatible with a continuation of the employer-employee relationship. The incident proven against Mr. LaBreque is a serious incident but it is not likely one that would sustain his dismissal, particularly in view of his history of employment, as an isolated incident if it were to have occurred in some other category of employment. But on the arbitral jurisprudence cited, patient abuse is an offence that justifies immediate dismissal for persons engaged in the occupation of health care ....... " "Reasons that may justify the dismissal of an'employee in one occupation may very well be seen as excessive when relied on as grounds for discharge in another occupation. The right of an arbitrator to review discipline does not bestow upon him the Jurisprudence to fashion the standards upon which discipline will be imposed." He then went on to find that on the findings of fact and the applicable arbitral jurisprudence, that the discharge of the grievor in the circumstances was not unreasonable or excessive, "particularly having regard to the standard with respect to patient .abuse existing in the health care profession. "Arbitrators have equated employment in the health care profession as the equivalent of a position of public, trust where a single lapse is deserving of discharge, in this dispute the management employees who both fix and reflect the standard have made me understand that patient abuse strikes at the root of the rehabilitation programme. It is not for me to 3udge whether their opinion is right or wrong but only to determine whether their opinion reasonably reflects a standard accepted by the profession itself. I am satisfied that the standard prevails and that discharge is the result that flows from a failure to maintain the standard." The above decision was followed by this Board in Chan and Ministry of Health GSB 911/86. In that case the grievor was employed as a PsyChiatric Nursing Assistant at the Queen Street Mental Health Centre. The grievor had been guilty of sexual misconduct with a female patient, ,The grievor had denied committing ~the act. His previous employment record was in some 11 instances less than satisfactory. After referring to the British Columbia Government case (supra) and Belleville General Hospital and Service Employees International Union Local 183 (18 L.A.C. (3d) 161 (England)) and Re Province of Alberta and Alberta Union of Provincial Employees 29 L.A.C. (2d) 109, Mr. Brandt concludes: "These cases point clearly to the conclusion that conduct of the kind engaged in by the grievor justify his dismissal. Indeed, if anything, the facts of the instant case point even more strongly to that conclusion. In the cases referred to, none of the conduct was as serious as that engaged in by the grievor. None involved sexual abuse. Rather they were concerned generally with aggressive handling of patients, not unlike that in which the grievor himself was involved in the May 1980 incident. More importantly, the conduct in those cases was frequently "provoked" by the frustra%ions which derived from having to deal with patients who were "difficult".. In that regard boards have said that the "nature o£ the work demands a capacity for patience and compassion..." (Re Province of Alberta, supra). Thus, the kinds of factors as mitigating in a different employment context, are not regarded as relevant in the health care field. In the instant case we have none of that. ' The grievor was not responding to the trying conduct of a difficult patient.. What he did was took advantage of her sexually obsessive nature and engaged in an act of sexual abuse. These factors cry out even more strongly than in the cases cited for the ultimate disciplinary sanction of discharge." In McGowan and Ministry of Community and Social Services G.S.B.0888/85 this Board had to deal with a question of resident abuse at the Huronia Regional Centre. McGownan was found to have committed an assault on a resident on July 30, 1985 and had previously used excessive force in dealing with that same resident in the early summer. 12 At page 12, the vice-chair Mr. Draper states: "An assault on a resident of a facility for the developmentally handicapped bya member of the staff of that facility with responsibility for the care of residents is unacceptable by any measure. However, even though the Grievor has demonstrated his unsuitability for his former position and must be removed from it, we are not convinced that his misconduct warrants his dismissal from the public service.' Rather, we believe such a dismissal to be an excessive penalty in the circumstances here. The Grievor was faced with the situation suddenly and unexpectedly. The punch appears to have been the result of a momentary loss of self-control presumably provoked by seeing R once again engaged in the incorrigible behaviour that periodically disturbed the ward. One punch is one punch too many but the fact that it was not repeated and that R was not otherwise physically threatened or abused suggests to us that the incident was not malicious or vindictive in character. All this being said, the Grievor's misconduct can in no way be condoned. It deserves and must receive a penalty commensurate with its gravitY." Then at page 13, the remedy: "We consider, it just and reasonable in all the circumstances and it is accordingly ordered that: (1) The Grievor shall be deemed to have been suspended without compensation but without loss of seniority from the date of his removal from his former position to the date of this decision; and (2) The Employer shall appoint the Grievor to a position which the parties are agreed is substantially equivalent to the position from which he was removed, such appointment to be effective from the date of this decision." It is also instructive to note that before the Board, the grievor in the McGowan case did not admit to committing the abuse. Employer Counsel however argued that the assault in McGown was less serious than those of the grievor in the subject case. The next 13 logical penalty in his view is dismissal. Finally, the employer's Counsel referred the Board to the case of United Steelworkers of America, Local 3257 and The Steel Equipment Co. Ltd. ('1964) 14 LAC 356 which sets out 10 factors which Judge Reville considered aDpropr±ate to consider in determining whether a penalty should be mitigated. Needless to say, twenty-four years of arbitratio~ experience has added many pages of specifics to these issues. We examine these questions further later in this decision. The Union Counsel acknowledges the grav±ty of the grievor's actions. She posed the~ssue as one whether the trust relationship between the Employer and the g~ievor has been irrevocably breached. She submitted that the onus to show that rests on the employer. The union submitted that they were not premeditated acts but more in the nature of crimes of passion. She further argued that the three acts of abuse all occurred within the same time frame and should therefore be considered as one incident. Other mitigating factors are that the grievor suffered a long period of joblessness as a result and has been the subject of adverse publicity. The Union referred the Board to the decision in Johnston and Ministry of Community and Social Services (GSB 7/78). This was a decision written by then Chairman G.W. Adams. This predated subsections 19(4) and (5) [Stats. Ont., 1978, c.79,s.1]. This.case 14 also involved resident abuse at the Huronia Regional Centre. The grievor kicked a resident and then attempted a cover-up of the abuse. It resulted in a conviction in a criminal court of common assault. At page 8, Mr. Adams writes: "While a concern for the welfare of the patient is of the utmost importance in cases of this kind, sight must not be lost of the fact that this Ministry is also an employer and its employees have a right to be dismissed for just and sufficient cause and no less. The result is that the employer and the Board are obliged to consider and accommodate the interests of employees~ where this can be done without impairment of the crucial interests of the patient. This also means that the mere recitation of "the patient's interestS" is, in itself, an insufficient 3ustification for the termination of an employee. If an employer is of the opinion that the patient's interests can only be accommodated by an employee's dismissal, the employer is obligated to establish this fact by direct evidence and Ms. Lovering's testimony was quite~inadequate if this was its purpose [page 10] ... Surely, at the very least, the employer is~obligated to assess the extent of risk associated with an employee's continued employment and in, appropriate circumstances, to consider the viability of alternative placements on a permanent or probationary basis as well as other intermediate punitive measures. It is not a matter of one general interest eclipsing another no matter what the situation. Rather it is the delicate and painstaking analysis of what is the most appropriate result having, regard to the particular situation at issue." Mr. Adams then highlighted certain elements in the case before him: .the grievor had never engaged in patient abuse before and it was likely to remain the only one, he did not intend to hurt the patient and it was a case of "horseplay'~, the punishment experienced by the grievor since the incident by way of criminal 15 conviction and lost work and salary, and their deterrent effect, his confession, his economic hardship and lengthy seniority and the absence of previous discipline. The Board directed the grievor's reinstatement as a residential counsellor without back pay and without the accrual of seniority for the period of his absence, that his performance be monitored for a year,and any further~problem "in the general area will result in his termination." The Union also referred the Board to its decision in Leering and Ministry of Natural Resources (GSB 1105/84). This decision involved an accusation against the Biologist grievor that while on a camping trip with male youths in the Ministry's Junior Forest Ranger program, he sexually assaulted two of the youths. Although he was c6nvicted in criminal court only of common assault, Mr. Verity for the b6ard found on the evidence before him that he did sexually assault one of the youths. The sexual assault was not 'violent but was unsolicited and unwelcomed by the youth. The grievor continued to deny that he committed the assaults but Mr. Verity accepted the truthfulness of the testimony of one of the complainants. The Ministry program in question did not of course fall within the provisions of subsections 4 and 5 of section 19 but Mr. Verity does point out at page 17: "There can be no doubt that the Ministry of Natural Resources Junior Ranger Program is a popular program of long- standing which has benefitted countless youth, both male and female throughout the years. It is essential that the integrity of the program be maintained and that the public retain confidence that the young participants will not. be sub3ected to improper conduct. Indeed, the Ministry has an onerous responsibility in the administration of that program and a special trust to the Junior Forest Rangers, their parents or guardians. In sum, the Ministry must act decisively in instances of alleged improper conduct." In determining what factors ought to be considered by the Board, Mr. Verity stated: "On the one hand, the Grievor's misconduct constituted a Serious beach of his duty of fidelity to the Employer. The Door judgment he displayed Casts doubt on his future trust- worthiness. His actions undoubtedly posed a threat to the viability of the Junior Rangers programme, which depends upon a relationship of trust between the Ministry, the participants, and their families. On the other hand, we are satisfied that the Grievor's misconduct constituted an isolated incident in an otherwise unblemished career. We are satisfied that there was no premeditation on the Grtevor's-part, an~ that he did not seek out the opportunity for his misconduct. We are not persuaded that at any time the grievor contemplated anything more than actually happened. We accept that the incident was "out of character" and that, especially in light of its results to date, it is unlikely ever to be repeated. There are other circumstances to be taken into account. We are satisfied that supervision of or conduct with the Junior Ranger is not a central part of the Grievor's responsibilities as a field biologist. We are satisfied that with the exception of this one incident, the grievor has discharged his responsibilities to the Employer in a satisfactory and professional manner. We are satisfied that the Grievor's prospects of finding comparable employment in his profession outside the public service are very limited, so that the discharge would work a particular economic hardship. We are satisfied that the Grievor has already paid a heavy price for his misconduct. All of these factors tend to mitigate against his dismissal." 17 With respect to the gr±evor's continued denials, Mr. Verity gave him the benefit of the doubt to the extent that "we are satisfied that.the Grievor sincerely believed his denial .... " In offering reinstatement, Mr. Verity did not see any inconvenience to the employer in keeping the Grievor from close and unsupervised contact with adolescent males. I find this case very instructive: While it is not a case of patient abuse, it is in fact in terms of trust compatible and comparable with that statutory archetype. And just as the Board may not reinstate a subsection 19 (4) employee to a situation of ",contact with residents in a facility" so the Board in Leering recognized that the Ministry of Natural Resources would not place Leering back in a situation of contact with adolescent males. In fact it was in reality treatedas if it were specifically a clause 19(4) (b) situation. In my view, it was clearly a very serious situation - one involving a sexual assault on a minor under conditions of trust for which the reputation and image of the Ministry of Natural Resources were directly on the line. It is also interesting to note that the Grievor could be restored to his regular occupation without serious alteration to his normal professional duties. The case before us is without question a serious one. But in my view the acts of Leering were, at least, if not more..serious in their implications. And there is another major issue in our case not present in LeerinG. The Grievor in our case on his own 'evidence which was uncontradicted was clearly sufferinG from the effects of alcohol abuse. Furthermore, there is sufficient evidence to suspect that there may even be some underlying emotional or even psychological problem. The legislation prohibits and in any event I would not consider the Grievor's restoration to workinG with patients or residents as defined in subsection 19 (5). The consequence of' this is that the Grievor's chosen professional career is in ruins. This has enormous consequences and in fact represents probably the most severe penalty that could conceivably be imposed on the Grievor. LookinG at other aspects of the Grievor's situation, I note t~at he had had a clear record prior .to these sad events. AlthouGh he had been classified staff only since 1986, he had previously worked as uncla~sified staff for the same Ministry in the same line of work for five years prior to that . I believe' that is worthy of weight in considerinG his situation as he asks for this Board to exercise its discretion. There was no testimony or evidence against the Grievor in any other respect and his Good reputation within the community was supported by those character witnesses who testified on his behalf. Their testimony was not chall'enGed. There was no evidence of any previous violence of any kind. He did admit his wrongful acts. At the same time, I do not intend to diminish the Grave nature of the acts themselves and I did note that the Grievor is in fact a large man~ It is clear to me that the inclusion by the legislature in 1978 of subsections 19 (4) and (5) is important - not only as a limit on this Board's discretion, but I must add of its recognition that t~e employer has other positions available to which employees can be assigned when they do transgress the highly important policy against patient or resident abuse. That policy can not only thus be protected but the employer's own obligations to its employees as recognized in the arbitration 3urisprudence can be met without violating or compromising that policy. I come now to the issue of substance abuse in the work place. The employer in response to a question from the chair informed the Board that it does have an~Employee Assistance Program for these employees.who have alcohol or drug abuse problems. This I wish to add is to my knowledge a common situation with modern progressive employers. Without attempting to resolve any complex issues about whether alcoholism is a disease or a character defect, I am satisfied that it is now standard employment policy to assist emDloyees with such problems through appropriate programs. This is not to suggest that the employee does not bear responsibility for his own coping with his Droblem. At the same time, I note that the evidence indicates that the grievor's heavy drinking was known to the other employees including his drinking on the ~ob. Yet there was no evidenc~ that at any time the EAP was offered to the grievor or that any effort 20 was made by the employer to assist him. I do consider that an .important factor when evaluating dismissal for acts in which alcohol played a significant role. On the evidence before me, ! do not doubt that the grievor's sudden spasm of violence was directly and significantly related to his excessive consumption of alcohol and possibly to an underlying emotional or psychological problem. An employer should make an effort to assist employees When it is obvious that they have such problems. And if it neglects to do so then that is in my view a legitimate factor for an arbitrator to consider in evaluating whether the penalty is excessive or unreasonable. It is normal when evaluating the role of alcohol abuse to consider whether the grievor can reasonably be expected to respond to a treatment program. Unfortunately in our case, no such program has yet been offered to him. He testified that he would participate in such a program. He has not been so far able himself to "stay on the wagon" although he did make an effort. It is not ~unusual to find that an alcoholic cannot do it on his own. That is the reason for such programs as Alcoholics Anonymous, the Renascent Houses and the Alcoholism and Drug Addiction Research Foundation (ARF). If the grievor does not enter one of these programs, I Sear his prospects will be very grim. Nor would I for a moment consider restoring him to employment with the Ministry without imposing evaluation under the Employee Assistance Program and completion of one of the appropriate rehabilitation programs such as Renascent House. In the result, I am satisfied that the penalty of dismissal was'excessive. Accordingly, I make the following order: the grievor is to be restored to employment ~ith the Ministry but within the limits imposed by subsection 19 (4). I do not require him to take any other than a substantially equivalent position since a permanent demotion is not generally considered an appropriate'disciplinary penalty. At the same time, there will be no monetary award, his lost time being considered as a suspension and shall not count toward his accumulated seniority. The restoration to employment is however conditional, upon the following:- 1. He is first to attend on the Employee Assistant Program for evaluation as to alcoholism. 2. He is also to be evaluated psychologically by an appropriate professional of the Ministry's own choice. If the result of such evaluation is that he requires any treatment or on-going assistance for any emotional or psychological problems he is to Comply with that treatment or program. 3. He is to undertake an appropriate alcoholism rehabilitation program through Renascent House or ARF or 22' some other equivalent program which the EAP propose~ and if he fails successfully to complete the program and any prescribed follow-up, he is to be summarily dismissed. 4. If it is considered essential by such program as set out in '(3) that he permanently abstain from alcohol consumption then he is to comply with that requirement as a condition of employment. 5. He will submit to such medical examinations as the employer may from time to time reasonably require to monitor and verify his freedom from alcohol abuse. 6.~ He is to join Alcoholics Anonymous or some equivalent organization and regularly participate in its meetings, and file proof of such regular participation with the employer as frequently as it may reasonably require. This requirement may be eliminated only by joint agreement of the employer and the grievor. 7. The employer is not required at this point to find employment for him in the geographical area of Orillia, but if there should be any disagreement by the parties on location the matter may be brought back before this panel for further determination. 23 Failure by the grievor to comply with these conditions will be ~rounds for dismissal. This Decision is to be implemented as quickly as possible and in any event the grievor is to be back on salary within two weeks of the issuance of this Decision. If there are any problems encountered by the parties in the interpretation or implementation of this Decision, these matters may be referred back to the panel which remains seised of them. DATED at Toronto this 24 day of May, 1990. Thomas H. Wilson Vice-Chairperson P. Klym, Member A. Merritt, Member