HomeMy WebLinkAbout1977-0010.Thompson.77-04-28CROWN EMPLOYEES
GRIEVANCE SETTLEMENT
EOARD
‘416 964-6426 Suite 405
77 BZoor Street We
TORONTO, GntmiO
MSS lM2
Between:
Before:
.,
IN THE M4TTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Mr. E. C. Thompson
And
Liquor Control Board of Ontario
For the Grievor:
For the Employer:
II. M. Beatty - Chairman
V. P. Harris - Member
D. Anderson - Member
William R.. Angus
LCBO/LLBO Employees' Association
John C. Murray
Hicks, Morley, Hamilton, Stewart & Storrie
April 8, 1977
Suite 405, 77 Bloor Street West
Toronto, Ontario
2.
In the grievance he has filed with this Board,
Mr. E. Thompson claims that he was dismissed without just
cause and by it he seeks to be reinstated to his position
#as a Clerk 3 with the L.C.B.O. without loss of monies or
service credits. Although this grievance raises, necessarily,
the rather fundamental issue of whether the employer's
termination of the grievor was for just and sufficient
cause, nevertheless the circumstances giving rise to it are not,
in any material sense, in dispute between the parties.
Rather, much of the evidence relevant to the disposition of
this matter was the subject of agreed statement of facts
between the parties and may be set out at the outset of this
award. That statement provided:
1. The Griever, Mr. Ed&&C. Thompson was
employed at Store #II, located at 932
Gerrard Street East, Toronto, in the
ctassifi6ation of Clerk III at an annual
salary of $12,808.00.
2. The Griever's continuous service date is
JuZy 26th, 1972.
3. The Griever is 46 years oZd having been
born on June ISth, 1931.
4. The Griever was employed in a conventioml
Ziqwr store. Bis job duties and responsibilities
included:
the servicing of customer requirements
by obtaining purchased liquor, britiging
it to the counter and wrapping it;
general store maintenance, cteaning of
floors, dusting, looking after garbage
and the baling of boxes; off-loading
detivexy trucks; and the operation
of the cash register-in the retail store.
3.
5.". Tne Griever worked at Store #ll after
July 7th,. 1975. Prior to this date,
the Grievor was employed $t Store #4,
in the City of Toronto, but, was
transferred to Store #II at his own
request. The L.C.B.O. was advised at
the time this request was made that
the Griever was seeking a better working
environment.
6. Annual Rating .&ports, while a&wwZedginj
a drinking pmb2em and the imposition,of
discipline, reflect that the Griever was a
satisfactory employee except for this problem.
See Exhibit #l - Report dated October lltk,
1974
Exhibit ii2 - Report dated October 3rd,
197.5
Exhibit #3 - Report dated October Stk,
1976
7. Tke Griever does have a previous disciplinary
record:
al On December 24tk, 1974, the Griever
received a written warning resuiltizg
from an early morning 11:OO a.m.)
phone caZZ to Mr. G. H. GuZZiver,
Store Manager of Stare #4. The purpose
of the ca22, apparently, wcis to
enquire about work in the morning of
December 24th. By tke'time that the
Griever contacted Mr. GulZiver, the
Store Manager, other arrangements
had to be made to rep&e the Grievor.
See Exhibit #4 - Letter dated December 24th,
1974 from Mr. G. H. &Zliver
bl The Griever was warned and repr-imarded
for reporting late for work in January,
1975.
See Exhibit #S - Letter dated January 13tk,
1975 from Mr. J. H. Be22
cl 1Tke Griever was given a written warring in
February, 1975 as a result of corduct,
apparentzy triggered by improper use of
prescribed medication.
See Exkibit X6 - Letter dated Febmi 14th,
1975 from Mr. W. D. XcLeod
4.
dl As a result of an incident on May 22nd,
1975, the Griever was suspended for
being under the influence of alcohol
wkiZe on duty.
See Exhibit #7 Letter dated May 22nd,
1975 from Mr. G. H. Gutliver
Exhibit #B - Letter dated May 29th,
1975 from Mr. E. C. Th0mp.h ._
Exkibit #9 - Note dated May 23rd,
1975 from ik. Lofchy
el As a resuZt of an incident on June 7th,
1975, the Griever was suspended for
drinking and disorderzy conduct. Further-
more, on this occasion, the Griever was
observed attempting to remove liquor
fm the store. lkis attempt was
immediately aborted when the Griever was
confronted by another employee. The
total suspensions imposed as a result
of the incidents m,entioned in paragraphs
Cd) and. le) were 20 days,. being 5 days
reZated to the May 22nd incident and 15
days related to the June 7th incident. In addition, the Griever was given a
fina waning and required, as a
condition of continued employment, to
contact a doctor to seek assistance
for an admitted aZcoho2 probZem and
further to follow any recommended
pogrom of treatment.
See Exhibit #lO - Letter dated'.Jme 7th,
1975 from Mr. G. R. Gulliver
Exkibit #ll - Letter dated June 12th,
1975 from Mr. E. C. Tkonpson
Exkibit #12 - Letter dated June 2dth,
1975 from Mr. W. D. McLeod
Exhibit ~#13 - Letter dated June 26th,
1975 from Mr. W. D. McLeod
w<th Griever's acknowZedgment
appended thereto
f) On May 3rd, 1976, the Griever was given a
written warning by Mr. S. Harnadek, Manager
of Store #II, because of derogatory
behaviour on May Is?, 1976 resulting fmm
the suspicion of the use of aZcoko1 and
a further warning as to the seriousness
of this behuviour.
5.
,.,~ .:.
.,:~ ..;.,
See Exhibit #14 - Letter dated May 3rd,
1976 from Mr. S. Harnadek
8. The final incident resulting in the Griever’s
dismissa occinred on December 4th, 1976.
9. Mr. Thompson filed a Grievance, g&eving the
dismissal, which was effective as of December 18th,
1976.
See Exhibit #15 - Grieva?ice of Mr. E. C.
Uwmpson dated December 24th,
1976
As well there was not any serious dispute between the
parties as to the final sequence of events which gave rise to
the employer's decision to dismiss Mr. Thompson from his
employment. According to Mr. Heslin, who is the Manager of
Store lyll and who therefore was the grievor's immediate
superior, the circumstances which imediately preceded the
termination of Mr. Thompson cornnenced early in November of 1976
and specifically on November 19 and 26 when he found Mr. Thompson
in what he regarded as a sufficiently inebriated state as,
to be,requi~red to be sent home from work. Indeed, it was his
evidence .that on the latter occasion Mr. Thompson in fact
reported for work in that condition so that on that day he was
actually sent home from work without having rendered any services
whatsoever. Moreover from his evidence, which was corroborated
by Mr. P. Van Mierlo, the Assistant Store Manager, it would appear
that this sequence of events more or less repeated itself on Friday
December 3 and Saturday December 4: In fact it was, as the
agreed statement of fact reveals, as a result of that final
incident that the employer determined to terminate the grievor
from his employment.
There is,/in our view, little need to describe in
I. any further detaal, the actual circumstances which prevailed
an the days in qkestion. In our view the details of those
I events add nothijng to the 'resolution of the grievance before
us. Very simply; on each of those occasions we are satisfied
I that the grievor, was in fact in no condition to render the
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services that th,e employer properly expected of him. Indeed,
I at no time did tjhe grievor attempt to deny or challenge
Mr. Heslin's dedcription of those events. Accordingly, the
fact the grievo$'s condition, which, as we have noted, pre-
eluded him from/fully rendering his employment obligations,
may have been attributable only in part to the consumption of
alcohol in our {iew cannot in any way excuse or mitigate the
seriousness of the grievor's misconduct. That is to say and
even though the(grievor's inability to work may'in fact have been
I . caused by a reaytlon of the alcohol he drank with the medication
he was ingesting, he was very aware that such a reactionwas a
likely conseque!ice of mixing the two substances, and had in
fact experienced similar reac,tions in the past. Moreover, against
his past experi&ce and given the seriousness with which his
wife, his employer, and the Lakeshore Psychiatric Hospital would
perceive the cojsu~mption of m amount of an alcoholic beverage,
the fact that on each of those accounts he may not have
I
consumed large iuantities of alcohol does not, in our view,
serve to mitigab the seriousness of his behaviour. Succinctly we
are satisfied tiat a culminating incident has been established.
I However,jit'is also our conviction that two circumstances
surrounding thi/s sequence of events and about which there i,s
also no dispute; between the parties, do merit our attention and
I
i I
comment. In theifirst place, and except for a suspicion
which was never substantiated, that the grievor may have been I
drinking in May If 1976, we would note that the sequence
of events described above, which transpired in November and
I December of 19761, is the only substantive evidence before this
Board that Mr. Thompson ever deviated from the programme of
therapy that he had commenced, at the Lakeshore Psychiatric
Hospital, as a condition of his continued employment in the
summer of 1975. I . , That 1s to say, and apart from those
/ events which cau,sed the employer to terminate Mr. Thompson,
I there is no eviyence that he ever disregarded the admonition
given to him by'the employer in June of 1975 (Exhibit 12).
In short, and on the employer's own evidence, we are satisfied
I . that Mr. Thompson~ did comply with the employer's orders and
did completely tefrain from consuming alcohol throughout the
period from thelsununer of 1975 until the incidents giving
I
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rise to his termination. Put succinctly, we are satisfied on the
evidence before;us, that following his employer's instructions
in June of 1975, the grievor was able to achieve and maintain
a condition of fobriety for a~ period of~some:-s~ixteen months.
Indeed, even asilate as October 1976 it was the opinion ,-~~
of his supervisors, as set out in their appraisal of.the grievor
(Exhibit 3) thaj:
Mr. j?. C. Thompson whom seems to have had
a problem in the past, but to ky knowZe&e
the& has beeti M na, occurence of this
probiem. Performs his duty in more than
adeqFte manner, at mazimwn satary.
Iand that) !
,
/ ,
Perfobms all duties of his classification
in a .katisfactory manner. He contributes
well Lo the operation of this store.
Receikng maarimwn
classkfication.
salary for present
Recommend no change.
The seconf material circumstance surrounding the events
in November and becember about which the grievor testified
and which he offered by way of explanation for his aberrant
behaviour in Nojember and December, concerned the fact that
much, if not all, of his unacceptable behaviour during that
time was precipijtated by and~could be attributed to his wife's having
locked him out df the house in the latter part of October.
That is, and whyle it is true that Mr. Thompson's marital
problems had been a source of concern to him for some
I. considerable period of time, it was his uncontroverted evidence
that when his wife actually severed their relationship by
preventing him from entering their home' he became particularly
morose, began to rely increasingly on tranquillizers and .
resorted, on occasion, to imbibing alcoholic beverages,
Thus, it is in that context and against those two considerations,
that the grievbr asks us to assessand consider what he conceded
~ to be his-deficient 'performance at work on the days in question.
It is, essentially, against those considerations that
this Board must assess the reasonableness of the employer's
_ decision to terminate the.grievor. In performing this function,
we would note that this is not the first occasion in which
this Board has been called upon to assess the propriety of a
termination of Fn employee whose deficient work performance
I
9.
could, by and la$ge, be attributed to an addiction to alcohol.
Thus,,in Re Stew&t 27/76 this Board stated that: ';
In assessing the propriety of the employer’s
termination of Mr. Stewart, we believe that his
circwnstancesIcan and properly should be analyzed
to those case:, colloquially described in the
private sector as terminations for innocent but
blameless absenteeism. While it is true that most,
if not all ofi those cases relate to what one might
characterize &s traditional or conventional illnesses
and injuries, I we believe that alcoholism, ru less than
a maZignancy induced or contributed to by the inhalation
of tar and nibotine can and perhaps should properly
be perceived &d chara&erized as an illness. So
characterised~ it follows that in assessing whether
the employer $ad just and reasonable grounds for
teninating t$e griever, this Board should inquire
of ad satisfy itself as to &o different circwns’%nces.
That is, <n @stances df termination for innocent
absenteeism, boards of arbitration must be satisfied
that both the; past absenteeism record of the geevor
and the prognosis for the employee’s, capabizity to
report for wo’rk on a ,regular basis in the future,
support .the e’qtoyer’s thesis that termination is a
just and reasbnab2e response to the employee’s
attendance &cord. Re Atlas Steel Co. (1975), 8 L.A.C.
(2d) 350 (We&herilZ); Be Brewers’ Warehouses Co. Ltd.
(19731, 4 L.A.C. (2dl 356 (O’Shea); Re &sseyiFerguson
Industries Ltd. (19701, 24 L.A.C. 344 IShime); Re Barber-
EZliti’of Ctida 119681, 19 L.A.C. 163 (Schiffl; Fe International
Nickel Co. of Canada Ltd. (19651, 16~~L.A.C.’ 220’Hdnrahan).
More specifitially by focusing upon s&h criter& as the
past empZoym&t record of the qr-ievor, the nature and
causes for the absences in the past, the persistence of
the attendanie problem, the effect of earlier attempts
by the emploher to rectify it, the frequency~(md duration
of the abseties as well as any medical prognosticatem as
to the J<kel&od of the grievor)s abiZity to report on a
regular basi.$, arbitrators attempt to make reasoned
judgemats as to the griever’s ability to fully discharge
his or her eloyment obzigations in the future IRe TewZe "
12,'761.
I
..:
I . Moreover;, in making such reasoned.judgements as to %he
.I grievor's abill;y to fully discharge his employment obligations
in the future, (this Board has more recently stated:
I
j ~,~
,
10.
Moreover ‘and more criticatly, there is simply no
objective’ and credible evidence, other than the
grievor’~ own assertion, that this Board couZd
rely upoti to chaltenge the employer’s decision
as to his’ future employment prospec~ts. !rhnt is
to say a& whiZe this Board can have every sympathy
and hope lfor the grievor’s future prospects, where
the empldyer has made considerable efforts to
assist ai employee in overcoming his dif.ficutties,
we cannoi impugn its decision to terminate those
endeavouh in the absence of some credible,
object& and reasonable evidence that would
suggest &at the grievor~would respond positiveZy
to furth& initiatives .
Re Moss 62/76.
Applyingithat mode of analysis to the circumstances of i Mr. Thompson's grievance and while cognizant that only
I . Mr. Thompson knows with certainty whether he has made the
I necessary connni;ment and embraced the requisite
.philosophy to olercome his addiction to alcohol, we believe
there is sufficient credible and objective evidence to support
the grievor's claim, and our conclusion that he merits one
final opportunify to prove he is capable of fully rehabilitating
himself. In the first place we are most impressed with the
fact that except for this culminating series of events the
grievor has, on the evidence before us, been able to adhere
I to and comply with the programme of rehabilitation prescribed
for him by the Lakeshore Psychiatric Hospital since the
sunnner of 1975. That record, of almost sixteen months .sobriety,
in our view speaks'most eloquently and objectively as to his
chances in the future.
perspective, L
Viewed from a slightly different'
it IS
1.~
our 'conviction that the grievor's deviation
from that progrannne of recovery must be seen against and'in
large part can be explained-by the personal crisis with which
he was confront/sd in the latter part of October. Put at
! I ~~~ __~~__
11.
its simplest, we are of the belief that but for the aggravation
of his personal problems, Mr. Thompson would have continued
to perform his work in the exemplary manner that his immediate
superiors had observed in the recent past. In short and against
that record of sobriety, we are satisfied that the grievor's
difficulties in November and December cannot reasonably support
the conclusion that he has so demonstrated his inability to
rehabilitate himself that he should be dismissed from his
employment. In fact, exactly the opposite conclusion would
appear to be advanced by Dr. Lakdawalla who has written of the
. gnevor in these terms:
Mr. Edwin !lkmpson was infonnatty admitted to
Atco~lic Services bn July 27, 1975. He was
an inpatient for 28 &IJS and was treated for
Chronic Atcohntism.
Dzcring inpatient treatment, Mr. Thompson took an active part in the ward activities, group
therapy, chemotherapy and educationat sessions
pertaining to alcoholism. It was fett by staff
that the patient was we22 motivated and
interested in successfutty completjng treatment.
Prognosis was considered to be excellent.
E'oZZow-itig discharge qn August 21, 2975, Eir. Thompson
attended Aftercare diligently and at regular weekly
intervals, There again, his motivation for
naaintaining sobriety uas excettent and he was
discharged from the Aftercare Program or AlcoF~lics
Services on August 3, 1976.
On November 1976, there was a family quarrel
which resutted'in his going out drinking. This has
been hiti one and only stip since discharge from
the pro-. At this.point it was decided that
Mr. Thompson would be an excellent candidate for
Antabuse implant, but unfortunately the impLant'
project has been discontinued because of technical
difficulties. I have advised E&-in strongly to
remain on orat Antub.~se..indefinitety. Presently,
he attends Aftercare meetings at reguzar intervals
and ties his best to meet al2 the demands made upon
him by US and by his family.
12.
My reconmendationq for this man aye: 1. Continue
on oral Antubuse indefinitely; 2. Therapeutic
sessions either with myself, or a’ psych‘iatrist
of choice, for both himself and his tife; and
3. Attend Aftercare meetings at reguZar intervals.
I have advised Edwin that if one breach of my
reconrmendations occurs, he will be discharged from
a22 contact tith our p~ogmm and WiZZ not be ye-
admitted.
Accordingly, and if on the strength of Dr. Lakdawalla's
recommendation, the Lakeshore Psychiatric Hospital is prepared
to extend to Mr. Thompson one final opportunity to prove
himself in its programme, we do not feel it unreasonable to
require this employer, with its particular and unique
connection to the ailment which has precipitated the grievor's
present difficulties, to respond ina similar fashion.
In addition, and putting this matter against other testimony
we received, we are also satisfied that Mr. Thompson will make
an honest, sincere and dedicated effortJo maintain sobriety
should we reinstate him. That is the thrust of Dr. Lakdawalla's
letter of April 4. That is also the essence of Mr. Stephen's
characterization of the grievor's present mental condition when
he testified that the grievor was making progress, is a sincere
person who is an attentive listener and honest with himself.
Moreover and most importantly, that assessment coincides with
the grievor's own record of sobriety following his attendance
at the Lakeshore Psychiatric Hospital in 1975 and with his
activities immediately following the culminating incident when
he phoned the Lakeshore Clinic, registered for an antabuse
implant, and re-enrolled in various re.habilitationpregrarmnes .- ,~ .-.;"I? L: ..- ,__ .:_ <>,_~
13.
at the Clinic and with Alcoholics Anonymous. In short from
the evidence of those who have worked most closely with him
in helping him overcome his addiction to alcohol,as well as
from his own behaviour both before and after the incidents in
question,we are satisfied that his conduct during November
and December can reasonably be viewed as an isolated and aberrant
sequence of events and one which, on the objective evidence
before us, will not likely repeat itself.
Moreover and against Mr. Stephen's description of the
grievor's character and personality, we, are satisfied that
Mr. Thompson is now fully aware that should he ever again
digress and depart from his road to recovery he cannot
reasonably expect either his clinic or his employer to have
to put their faith in him again. Very simply and as we
remarked in our earlier Moss award,
. . ..nt some point and however tragic the
circwnstances, the employer is entitZed to
protect itself and its other employees from
the very real and often significant costs
that can result from an employment record~.:.~
such-as that of Mr. Moss.
Hopefully then that forewarning .of itself, and apart
from anything else will assist him in maintaining himself .-;
-,,
as a productive and resourceful employee.
In reaching this conclusion, this Board does not mean
.
to suggest that we will be inclined, on every occasion that
someone such as Mr. Thompson faces a personal crisis, to
excuse or condone a lapse in fortitude. Each case, in
14.
circumstances such as these, necessarily must turn on its own
particular facts. In fact, as we have noted that is but one of "
several factors which has induced this Board to provide Mr. .,
Thompson with one final opportunity to prove himself to his family,
his physicians, his friends and counsellors and to his employer.
Indeed and to indicate to Mr. Thompson the seriousness with which
we regard his lapse, even in the face of admittedly trying
circumstances, we believe that while the employer did not have
reasonable and proper grounds to terminate Mr. Thompson, it would
have been entitled to suspend him from his employment for a period
of five months. Even in his difficult circumstances, his misconduct
was, in hour view, sufficiently serious to warrant such a sanction.
In the result, and against that conclusion we would order,
pursuant to our authority set out in s.18(3) of the Act, that Mr.
Thompson be'reinstated to his position as a Clerk 3 in the employer's
Store #11 on May 18, 1977.without compensation and without the accural
of service credits during the period of that suspension. In the
result and for the reasons given this grievance is allowed in part.
Dated at Toronto this 28th day of April 1977 :~.~ ”
dJ
D. M. Beatty~
Chairman
I Concur .~ ..
V. P. Harris
~Member
,I Concur
D. Anderson
Member