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HomeMy WebLinkAbout1976-0027.Stewart.76-05-12- CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD 416/965/1410 meen’s Park Toronlo. Onterlo M?A 125 IN THE MATTER OF AN ARBITRATION '. Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mr. GeorgeA;;ewart (Grievor) The Ministry of Health (Empioyer) Before: D. M. Beatty Chairman G. K. Griffin Member H.,E. Weisbach Member For the Grievor G. Richards - Ontario Public Service Employees Unior For the Employer 1. Freedman - Counsel, Ministry of Health Hearing: Westbury Hotel, Toronto, Ontario, May 6th. 1976 P ‘i - 2 - The grievance of Mr. George Stewart, employed as Clerk 3 in the Ministry's iinance and Accountin Branch is a tragic and un- fortunately an all too common one. Very simply, from the agreed statement of facts, submitted by the parties and from the.letter of termination written by the Deputy Minister, Mr. Stewart was dischar,ged from his employment on March '22, 1976 for his persistent and continued absenteeism caused by his inability to control a drinking problem. Al.tho.ugh Mr. Richards made note of the fact that all of the grievor's absences could not be attributed to the grievor's illness, nevertheless from the agreed statement of facts it is manifest that over the course of his employment from September 8, 1967 until his termination the vast majority of his absences were / -. directly or indirectly attributable to that condition. Moreover, and although we do not intend to exhaustively detail, in this award, ~the duration and frequency of his absences, it is obvious from his record that his attendance was grossly deficient, It is true that on occasion the grievor was apparently able to bring his drinking problem under control and on tit least two occasions wasp able to report to ~~ work for extended periods of up to a year without any undue absenteeism. However ultimately on each of these occasions it appears that Mr. Stewart's illness would manifest itself again, would overcome him and hiss attendance would suffer accordingly. It should also be noted that the agreed statement of facts reveals a persistent but compassionate attempt by the employer to assist the griever with his illness. Repeatedly the employer brought the deficient attendance record to the grievor's attention, warned him.that -3- his failure or inability to improve would result in his dismissal while simultaneously directing him to various rehabilitation and treatment programmes. ~Thus while in no sense could it be said that Mr. Stewart was lulled into a false sense of security or into believing that his employer would forever tolerate his attendance record, the employer nevertheless did actively and repeatedly give the grievor every benefit of the doubt that he could and would at some point in time overcome his ailment. Indeed we might say that as a Board of Arbitration we are of the view that the employer's compassionate yet firm handling of the grievor's difficulties could well serve as a model for other employers and Ministries to pursue in these and indeed other areas of deficient work performance. Their efforts represent to us,even against their failure to achieve desired results, a classic application of the rehabilitative approach to employees who manifest deficient work habits. For that.we commend them. In assessing the propriety of the employer's termination of Mr. Stewart, we believe that his circumstances can and properly should be analyzed to those cases, colloquially described in the private sector, as terminations forinnocent but blameless absenteeism. While it is true that most, if not all of those cases relate to what one might characterize as traditional or conventional illnesses and injuries, we believe that alcoholism, 'no less than a malignancy induced or contributed to by.the inhalation of tar and nicotine can and perhaps should properly be perceived and characterized as an illness. So characterized, it follows that in assessing whether the employer had just and reasonable grounds for terminating the grievor, this Board should inquire of and satisfy itself as to two different circumstances. That is, in instances of termination for innocent absenteeism, boards of arbitration must be satisfied that both the past absenteeism record of the grievor and the prognosis for the employee's capability to report for work on a regular basis in the future,support the employer's thesis that termination is a just and reasonable response'to the employee's attendance record. Re. Atlas Steel CO. (19?5), 8 L.A.C. (2d) 350 (Watherill); Re Brewers! warehous.es co. Ltd. (1973), 4 L.A.C. (Zd) 356 (O'Shea); Re Massey- ~erguson Industries Ltd. (1970), 24 L.A.C. 344 (Shime); Re Barber- Ellis of Canada (1968) 19 L.A.C. 163 (Schiff); Re.Intern~tional Nickel co. of~Cana& Ltd. (1965). 1.6 L.A.C. 220 (Hanraban). More specifically by focusing upon such criteria as the past employment record of the grievor, the nature and causes for the absences in the' past, the persistence of the attendance problem, the effect of earlier attempts by the employer to rectify it, the frequency and duration of the absences as well as any medical,prognosticatem as to the likelihood of the grievor's abilfty to report on a regular basis, arbitrators attempt to make-reasoned judgements as to the grievor's ability to fully discharge his or her employment obligations in the future (Re - Temple 12/76). Applied to the circumstances of the grievance before us, it is manifest that, regardless of the obvious sympathy that both we and this Ministry have for t4r. Stewart's unfortunate plight, there was just and reasonable cause for its termination of him: In the first place.as Mr. Freedman succinctly stated, Mr. Stewart's attendance' 'record over the course of his employment with this Ministry speaks more eloquently than anything we might say about it. Mr. Stewart's attendance problems, have been both frequent and persistent'over the course of hiss entire employment. The nature of and causes for his :. :: - 5 - inability to report forwork can,in the vast majority of instances 1 be directly or indirectly attributed to his sickness. The employer has, as described above, persisted, in its efforts to assist the grievor in overcoming this ailment but, ultimately, on each occasion to no avail,. In short and with respect to Mr. Stewart‘s past per- formance, this Ministry has more than satisfied the burden it assumes in establishing the deficiency of that performance. With respect to the prognostication for Mr. Stewart's ability to report for work on a regular basis in the future, again the attendance record over the past seven years offers no support or basis on which one could reasonably conclude that his fortunes in the future will be materially different. That record, as noted .' above, shows that although Mr. Stewart has been exposed to various treatments and has appeared on occasion to gain control of his ailment, ultimately he has been unable to resist the temptation. Furthermore although the grievor introduced into evidence a statement from his own physician, even he is unable to offer any solid prognosis other than his "hope" that Mr. Stewart "will" overcome his problems in the future. Moreover, and although this Board listened to the eloquent testimony of "Vern", a member of Alcoholics Anonymous, who sponsored Mr. Stewart's present membership in that organization, describe the strengths and merits o,f that programme, even he was un- willing to offer any categorica prospects. Although it is true to be a miraculous change in Mr 1 predictions as to the griever's future that Vern did describe what he perceived Stewart over the past two months since :,,. he joined Alcoholics Anonymous, nevertheless that evidence must be ‘. ” ?- -6- weighed against the grievor's past and unproductive,associations with that and other organizations and against the realization that in the past Mr. Stewart has been able to control his drinking for sub- stantially longer periods than he presently has without ever apparently being able to finally cure or completely control the disease.. In short there is~simply no firm evidence before this Board on which we could reasonably or confidently conclude that on this occasion he has finally brought this ailment to its knees. The grievor himself did not testify before this Board and~without hearing from him, we simply have no basis on which we could assess his commitment to finally and con- clusively resolve his problems. In the absence of such evidence it must follow, from his previous record, that the employer's conclusions with respect to his future prospects were not unreasonable. As we have noted this Board and indeed this Ministry feels a great deal of compassion for Mr. Stewart's plight and share his physician's and his friends'hopes that he finally has resolved to cure himself of his ailment. However, and our compassion notwithstanding it is simply a well settled principle of the arbitral jurisprudence that a board of arbitration should not invoke its discretionary powers to mitigate a penalty on purely com- passionate grounds alone. Re L?ouglas Aircraft Co. of Canada Ltd. (1966) 16 L.A.C. 38 (Arthurs) Re Eaton ~Automotive Canada Ltd.11964) 15 L.A.C. 307 (Cross Re: McKinnon Industries Ltd. (1953) 3 L.A.C.~ 956 (Cameron). Rather we must be cognizant that employees such as Mr. Stewart who, however blameless, are unable to report for work on a regular basis inflict real and often substantial costs on their employer. Re Temple 12/76. In the words of one board: .’ L.; -7- The first basic principle is that innocent absenteeism cannot be grounds for discipline, in the SenSe of punishxnt for blame- worthy conduct. It is obviously unfair to punish someone for conduct which is beyond his control and thus not his fault.~ However, arbitrators have agreed that, in certain very serious situations, extremely excessive absenteeism may warrant ter- mination of the employment relationship, thus discharge in a non- punitive sense. Because the relationship is contractual, and the employer Should have the right to the performance he is paying for, the employer should have the power to replace an empioyee on a job, notwithstanding the blamelessness of the latter. If an employee cannot report to work for TeasonS which are not his.fault, he imposes losses on an employer who is also not at fault. To a certain extent, these kinds of losses due to innocent abSenteeiSm must be borne by the employer. However, .after a certain stage is reached, the accommodation of the legitimate interests of both employer and employee requires a power of justifiable termination in the former. Re Massey-Feryuson Ltd. /1969), 20 L.A.C. 370, 371 (Weiler). In short, sensitive to the actual costs that are generated by an employee who is~chronically ill or incapacitated, and responsive to their jurisdictional mandate, arbitrators generally have been unwilling to require employers, as a matter of public policy or social obligation, to continue indefinitely in employment, employees who are incapable of discharging their employment responsibilities in a consis~tent and adeauate manner. Re: Canadian Safety Fuse Co. (i973)., 3 L.d.C:. (2d) 77 (Moalli). Applied to the circumstances of this case we can do nb better than another board, which, when confronted with a similar 'tragedy concluded: I would be less than frank if I did not conclude by stating that this case presents in a tangible way a problem of great social .dimensions. The individual whose life is ravaged by personal weakness, financial pressures;or family difficulties, represents a burden, not'merely to the company,, but to society as a whole. His bad credit, his family's basic needs, 2nd his inefficiencies as a worker, all are cost items which are ultimately borne by society. It is therefore particularly tragic When such a person's primary productive activity is ter- minated. Not only is his job the means by which he bears some of these costs, but as well it may be a vehicle for~reinteyratiny him into the community as a useful citizen. Absent a job, prospects for rehabilitation are obviously much lower. Yet it is not fair to ask‘this company to take the risks, to bear the,costs, of help- ing an individual in this predicament. Surely such costs ought to be borne by society. Of CO"ISt?, if good corporate citizenship leads the.company to~undertake responsibility (as it did do in a limited way) it is to be commended. For example, the company might properly - B - have agreed to reinstate 'the grieves on probation, upon proof that he was in regular attendance at some social agency that certified his reasonable prospects of recovery. ~+rhaps, in fact, in ap- propriate cases an arbitrator might so order. Ce+tainly nothing in my award is intended to preclude any act of generosity by the r compny in "salvaging" this employee. Fortunately, the union has expressed its willingness to assist in such a project. However, if the parties cannot agree to the institution of a scheme for helping employees in similar circumstances, and perhaps Mr. Sabodash himself, I am afraid that, I am unable to ~compel them to do so. As an arbitrator, my function is to adjudicate the dif- ferences between the parties, rather than to fashion for them, out of whole cloth, solutions which they are always free to construct, but have chosen not to.. Re muglas Aircraft of Canada Ltd.. (1966) 18 L.A.C. 38, 42 (Arthurs). In conclusion this Board wis~hes to express its ap- ~preciation to both Mr. Freedman and Mr. Richards for their'ability to amicably and fairly meet with each other prior to the hearing before this Board and to agree on the evidence on which Mr. Stewart's grievance was'founded. Such a procedure, well known to the private 'sector can only add to the ability of this Board to discharge its mandate in an expeditious and forthright manner to the obvious benefit of those grievors who have yet to come before us. It is our hope that their example in the grievance before us will in due course become a model for the entire public service. For their efforts and their example we are,grateful. Accordingly, and for the reasons given.we must find that the employer had just and reasonable cause for the termination of Mr. Stewart. In the result, and for the reasons given, we must, with reluctance, ,dismiss this grievance. Dated at Toronto this 12th day of May, 1976. D. M. Beatty Chairman