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HomeMy WebLinkAbout2005-2409.Cahill.06-08-14 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB# 2005-2409 UNION# OLB578/05 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Cahill) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Vice-Chair Nimal V. Dissanayake FOR THE UNION Kourosh Farrokhzad Barrister and Solicitor FOR THE EMPLOYER Dan Palayew Ogilvy Renault LLP Barristers and Solicitors HEARING January 9 and August 1, 2006. 2 Decision This decision relates to a discharge grievance date d October 18, 2005 filed by Mr. Patrick Cahill (?grievor?). The grievor had been previously discha rged by the employer on November 13, 2003. He grieved, and following a hear ing before this Board, he was reinstated subject to certain strict terms akin to a last chance agreement. (See decision dated August 11, 2005 in GSB File # 2003-3099). Pursuant to that d ecision the employer reinstated the grievor in the position of Manager of a ?D? LCBO Store in Cardinal, Ontario. Apart from the location, that position was the same as the one he had occupied at the time of his discharge. Following a three th week retraining, he started at the Cardinal Store on September 13, 2005. He worked on the 13, th th th 14, 15 and 16 and then was off on bereavement leave and an approved leave of absence th without pay till October 4, 2005, because of the death of his mother overseas. Upon his return th th th he worked on October 5, 6 and 7 without incident. However, he was discharged due to th events on October 8, 2005, his eighth scheduled shif t following his reinstatement. It suffices to note that the parties are in agreement that as a result of the terms of reinstatement the grievor was under, if the employer had just cause for any discipline arising out of the grievor?s conduct on October 8, 2005, his discharge must be upheld. The facts are not in dispute to the follo wing extent. The grie vor was scheduled to th commence his shift on Saturday October 8, 2005 at 9:00 a.m. and to get the Store ready for opening at 10:00 a.m. He was scheduled to work alone till 1:00 p.m., at which time two casual employees were to start their sh ift. Being the Saturday of th e Thanksgiving long weekend, that day has historically been one of the three busiest days of the year for the LCBO. The grievor did 3 not report to work at 9:00 a.m. as scheduled. Around 10:30 a.m. the manager of a deli-store located in the same mall as the liquor store noticed that customers had gathered outside the liquor store, which was still closed. He drove over to the home of one of the casual employees, Ms. Dominique Reid, and reported that the liquor stor e had not opened yet and that customers were gathered at the entrance. Ms. Reid, realizing th at it was the grievor?s re sponsibility to open the store that day, called him at his home. Ms. Reid?s call woke up the grievor, who was still asleep. Ms. Reid immediately rushed over to the store, still in her pyjamas, and arri ved at the store at 10:47 a.m.. Shortly after, at a pproximately 10:50 a.m. the grie vor arrived. Thus, there is no dispute that the grievor was late for his shift by approximately one hour and fifty minutes. The evidence is also uncontradicted that the grievor did not at any time notify management of his lateness. The dispute between the parties, and the i ssue for determination by the Board, is as to th whether the grievor?s failure to repor t on time for his shift on October 8, and his failure to notify management, gave the employer just cause to impose any discipline on the grievor. The union takes the position that in the part icular circumstances there was no just cause th for any discipline because the grievor?s lateness on October 8 was ?innocent?. The union relied on the fact that the grievor had suffered a work related injury back in December 1991 and was diagnosed as suffering from a degeneration of the spine, a condition called spondylosis. In April 1993 he returned to work subject to permanen t restrictions approved by the Workers Safety Insurance Board, to avoid heavy lifting, pushing or pulling and to avoid repeated or sustained bending or twisting. The union claimed that the grie vor?s failure to report for his shift, and his failure to notify his absence, were directly re lated to his disability, i.e. his back problem. Therefore, it was argued that his absence was i nnocent. Authorities were cited to support the 4 legal proposition that an employer has no just cau se to discipline an employee for innocent absenteeism. The grievor testified as to the reasons for his failure to report on time for his shift on th October 8 and for his failure to notify management. On the former issue, in chief, he testified th that on the 7 of October he scheduled himself for a sh ift from 11:45 a.m. to 8:15 p.m.. During that shift he operated the cash. After work, he arrived at home around 9:00 p.m.. When asked when he first felt pain, the grievor testified that it was around 11:30 p.m. or midnight, when he had laid down in bed. He stated that the pain he experienced at the time was ?from standing? during the shift. He stated that he could tolerate the pain, but the tingling bothered him. Then the following exchange occurred be tween union counsel and the grievor: Q: What did you do? A: I took 2 Tylenols and sat up for a while. Then I went And lay down. But it was the same thing. So I took 2 more. Q: when? A: 45 minutes later Q: What was the effect? A. Nothing. Q. When did you fall asleep? A: The last time I recall, the clock was at 4 or 4:15 a.m. The grievor testified that normally he t ook Truly, Roboxacet or Roboxilin for pain. However, that night all he had was Tylenol. He testified that he did not expect to need any medication, that he did not expect that ?the pain would cr eep up on me?. The grievor?s next recall was hearing the telephone ring around 10:30 a.m.. When he answered, Ms. Reid asked him if he planned to go to work. He asked her what time it was and told her that he would go right away. He showered and left as fast as he could. 5 Union counsel asked the grievor why he had ove rslept. The grievor testified that he did not hear the alarm. He said ?I was sedated. I was drugged out.? th Under cross-examination, the grievor testified that on October 7 after his shift he went home directly, had a snack, and went to bed by 11:30 p.m.. Then the following exchange took place: Q: Did anything happen that night? A: I couldn?t get to sleep because my leg was bothering me. Q: Not prior to that? A: Just a bit. Q: What did you do? A: I really couldn?t do a lot. I wasn?t prepared for a Recurrence. I was in disarray in Cardinal. Q: What did you do? A: I took a Tylenol. Q: Then? A: I waited for the pain to go away trying to fall asleep. Q: Did you eventually fall asleep? A: Yes. Q: When your counsel asked you in chief you said you took 2 Tylenols ? was it one or two? A: One immediately and probabl y one shortly after. I then Kept on taking. Q. In chief you said something very diffe rent ? You just said you took one and kept on taking? A: Probably I took through the whole evening. Q: You were asked this question first in the NOID, then Pam McGregor asked you at the meeting, and then you were asked the same question in chief ? what is your answer? A: Probably I took 5 over the course of the evening. Q: When did you take the last Tylenol? A: About 3:30. Q: So now you say between 12:30 and 3:30 you took 5? A: Yes. Q: But in chief you clearly said you took 2 Tylenols, sat up for a while, and 45 minutes later you took 2 more - which is correct? A: Then its 4. Q: In chief you said you were sedated and drugged out ? do you recall that? A: Yes. 6 The grievor had been issued a Notice of Intended Discipline (NOID) dated October th 12, 2005 in relation to his conduct on October 8, 2005. In his response to the NOID, the grievor explained that he had experienced a sh arp tingling and numbness in his leg the night before. He wrote ?It has been a long time sin ce this has occurred and I was not 100% prepared for the return of my ongoing permanent disability that I have acquired afte r the lifting with my career with the LCBO?. The grievor then wrote: ?On the night before the day in question, I was popping Tylenols trying to stop the sh arp tingle in my leg to fall asleep and to no avail I was up most of the night?. During his examination in chief, the gr ievor was asked whether he contacted the District Manager, Ms. Karen Rich ardson-Norris about his failure to report on time. He replied, ?No. Dominique told me that she had been info rmed already by someone at the Iroquois Store. After Dominique left I was pretty steady and al so I was not 100% compatible with the cash register still?. Under cross-examination, the grievor agr eed that during the 3 week training he received upon his reinstatement, he was reminded of the requirement to report to his supervisor of any absence. The grievor acknowledged that he was aware of the requirement. The grievor further agreed that he was la te for his shift by about one hour and 50 minutes. He was asked whether he knew of the policy about what a store manager?s obligation was in that situation. The grievor replied, ?Yes. To notify the supervisor?. He was asked whether he notified his supervisor as per that policy. The grie vor responded that he did not. Then the following exchange occurred: 7 Q: Why not? A: She had been already notified. Dominique said that a neighbouring store phoned the District Manager that the store was not open. Q: Did she say that the Store spoke to the District Manager? A: That they left a voice-mail. Q: So although you knew the procedure, you thought that was sufficient? A: I was at the store working. Q: Answer my question ? even though you knew the procedure, You thought it was sufficient that someone had left a voice-mail for Karen? A: Yes I did. The evidence indicates that at a meeting with management held on October 17, 2005, th the grievor was asked whether he attempted to call anyone after he was woken up on October 8 by Ms. Reid?s call. He replied that he did not, th at he got up, showered and went to work. When asked whether he called anyone once he got to work, he replied that he did not, because Dominique had said that ?Karen already knew?. Ms. Reid also testified on this issue. She testified that the grievor had arrived shortly after she had opened the store. She told the grievor ?that so me people had gone to the Iroquois Liquor Store and told them that our store had not opened, and that someone from the Iroquois Store had called our District Manager. I asked hi m if he had called Karen. He said ?Oh. I am sure she will be calling me?. Based on the evidence before me there are two distinct allegati ons of wrong-doing on the part of the grievor. First, that he reported for his scheduled shift approximately one hour and fifty minutes late, and second, that contrary to the procedure he was admittedly aware of, the grievor failed to notify his manager about hi s lateness. Union counsel argued that both infractions were non-culpable and innocent, because they were ?dir ectly related to the permanent 8 disability the grievor suffered fr om?. Counsel thus submitted th at this case come within the category of ?innocent absenteeism?. It therefor e follows, he submitted, that there was no just cause for any discipline arising out of innocent absenteeism. While the union?s argument is creative, th e evidence before me does not support that argument. The fundamental flaw in the union?s argument is that the evidence does not establish any link between the grievor?s di sability and his infractions. Employer counsel urged me to conclude th at the grievor?s claim that he suffered a recurrence of his disability on th e night in question was a fabricat ion, or at least an extreme exaggeration. Counsel point ed out that the injury in question took place so me 14 years earlier. The employer at the time returned the grievor to work within his medical restrictions. For some 12 years since then, no medical evidence of the stat us of his disability had been provided to the employer. Prior to his first discharge, and si nce his reinstatement, th e grievor had routinely performed cashiering functions as a ?D? store mana ger. At no time did he complain that those duties caused him any problems or that they were outside his restrictions. Since his reinstatement at the Cardinal Store, he used his authority as manager to schedule the casual employees to do the heavy work involved on load da ys, while he restricted himself to cashiering th duties. On October 7, he made no complaint of discomfort during the shift. Ms. Reid testified that she did not notice him to be in any discomfort or see him take any medication. All he did that day was cash, and he worked to the end of his shift. Counsel drew my attention to the evidence that following his first discharge, the grievor had worked in the construction industry, cutting out walls. Since his second discharge, he had been employed doing painting. He had done this physical work without any complaint and 9 without suffering a recurrence of hi s disability. Counsel also poi nted out that the grievor had claimed that he had pain and tingling in his leg to such extent that he did not fall asleep till after 4:00 a.m.. He also had claimed that the Tylenol he took was ineffective. Yet he did not at any time even attempt to contact a doctor about the alleged recurrence of his disability. The only action he took was to buy some over the count er medication on the recommendation of a pharmacist, and even that he di d only on Saturday night, after he had completed his shift and th returned to Ottawa. Moreover, on October 8 Saturday, once he reported to work, he carried out his functions with no problem or complaint, and completed his shift. Employer counsel submitted that all of this evidence suggests that the grievor?s story was a fabrication. While I agree that the evidence as a whol e casts doubt on the grievor?s claim of a recurrence, for purposes of this decision it is not necessary to make a finding in this regard. Assuming that he did have a recurrence as he claims, that by itself doe s not assist the union?s case. The grievor is not claiming that he wa s unable to report to work on time or to notify management because he was in pain. His explana tion is that his infracti ons were a result of him getting sedated and drugged out as a result of th e medication he took, which caused him to sleep through the alarm. In other words, he claims th at he did not report for his shift on time and did not report to management, not be cause of the recurrence of his disability, but because he had been sedated and did not hear the alarm. Had he heard the alarm, there was nothing that would have prevented him from reporting to work. In fact, once he was woken up by the telephone call, he did report to work and even completed his shift. In light of that lack of a connection between the alleged infractions and the grievo r?s disability, I find that the principles and authorities relating to the duty to accommoda te and innocent absenteeism relied upon by the union are irrelevant. The relevant issue is whether the evidence establishes that the grievor had 10 in fact been sedated by the Tylenol he took that night and if so, whether that renders his failure to report to work on time and his failure to notify management, non-culpable. On a review of the evidence before me, I fi nd the grievor?s claim th at he was sedated as a result of the Tylenol he took that night to be not credible. I have se t out the evidence with regard to the inconsistent statements the grievor had made as to the quanti ty of Tylenol he took that night. The grievor made di fferent assertions at different times, of the amount of Tylenol he took. His claims ranged from taki ng 4 Tylenols between 12:30 and 3:30 a.m. to ?kept on taking Tylenol all evening?. He did not explain his conflicting clai ms, but when confronted under cross-examination merely stated, ?OK. Then it is 4?. His testim ony in this regard was far from credible. He demonstrated that he was prepared to say anything that he felt was in his best interests at the time. Even if the Board ignores the credibility issues, and accepts the final position the grievor took during cross-examination, that he took 4 Tylenols betwee n 12:30 a.m. and 3:30 a.m., the evidence before me does not support a finding that as a result the grievor would get ?sedated and drugged out? as he claimed. The em ployer filed in evidence an excerpt from ?The Compendium of Pharmaceuticals and Specialties ? The Canadian Drug Reference for Health Professionals? 2005, published by the Canadian Phar macists Association. In the section under Tylenol, certain adverse effects ar e noted. However, a sedating eff ect or even drowsiness is not listed as a possible effect of Tylenol. I find that the grievor?s claim to have been ?sedated and drugged out? as a result of taking 4 Tylenols over a period of 3 to 4 hours to be unbelievable. In the face of the scientific evidence adduced by the employer, and in the absence of any evidence from the union that Tylenol, even if taken in large dozes, can possibly have such a sedating effect, I do not accept the grievor?s explanation for his sleeping in. 11 The difficulties with the union?s case do not en d there. Even if I had accepted that the grievor had been sedated as a result of the Tylenol he took, and that it had caused him to sleep through the alarm, that still does not explain hi s failure to notify management. There is no question that the grievor woke up around 10:30 a.m.. At that time he would definitely have been aware that he would not meet his obligation to report for his shift at 9:00 a.m. He was also aware that the policy required him to notify management of his lateness at that time. He did not do that. Even if the Board accepts that the grievo r was more concerned about rushing to open the store as soon as possible, there is no explanat ion as to why he did not call his manager once he got the store opened. He did not do that either. From 10:50 a.m. he carried on as if nothing had happened. The only explanation the grievor provided fo r his failure to notify had nothing to do with his alleged recurrence or his alleged sedati on. He did not comply with his obligation to notify his manager because he had multiple hear-s ay information that the District Manager had already been informed by some unidentified pers on that the liquor store had not opened. This was based on the fact that Ms. Reid had told hi m that some unidentified customer had told some unidentified person at the Iroquois Liquor Store that the Cardinal Store had ?not opened?, and that someone from that store, ag ain not identified, had in turn left a voice-mail for the District Manager. The grievor had no information as to the content of that voice-mail, other than that it said that the Cardinal Store had not opened. Yet he decided that because someone else had left that voice-mail for the District Manager, that relieved him fr om his obligation to notify. Particularly considering that th e grievor was the store manager with responsibility for two casual employees, I find that the grievor?s casual attitude towards his obligations to be unacceptable. The evidence is that Ms. Rei d, even though a casual employee, understood that the grievor was 12 required to notify management of his lateness. Ind eed, as soon as the grievor arrived at the store, she reminded him of that obligation to call the Dist rict Manager. As part of the retraining he received upon his reinstatement the grievor had been reminded just a few weeks earlier that he was required to notify his District Manager if he was not at the store when he was supposed to be on shift. Yet, when Ms. Reid asked him whet her he had called the District Manager his only response was to say ?Oh! I am sure she will be calling me?. In my decision dated August 11, 2005, I stated that I was reinsta ting the grievor with some hesitation. I made it very clear that the gr ievor was getting one last chance to salvage his career with the LCBO and that misconduct giving ri se to just cause for any discipline, would result in his discharge without recourse. The grievor testified under cross-examination that he had read the decision and understood that. Yet, the conclusion is inescapable that after just 8 shifts following his reinstatement, he gave the employer cause for discip line, by his failure to report for his shift on time, and by failing to noti fy management as required by the policy he was admittedly aware of. His explanations for th e infractions are not believable and are not reasonable. His conduct was culpable and gave cause for discipline. Considering the terms of reinstatement the grievor was under at th e time therefore, I have no other choice but to uphold the employer?s decision to discharge him. 13 Accordingly, the instant gr ievance is hereby dismissed. th Dated this 14 day of August, 2006 at Toronto, Ontario Nimal Dissanayake Vice-Chairperson