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Home My WebLink About1978-0120.Burns.79-06-07120/78 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mr. Gerald Burns - and - The Crown in Right of Ontario Liquor Control Board of Ontario Before: Professor K. P. Swan Vice-Chairman Mr. E. A. McLean 'Member Mr. H. Simon Member For the Grievor: Mr. Gerald Burns Liquor Control Board of Ontario For the Employer Mr. C. Morley, Hicks, Morley, Hamilton 1201 Royal Trust Tower Box 371 Toronto-Dominion Centre Toronto, Ontario Hearing: April 9th, 1979 Suite 2100 180 Dundas St. W. Toronto, Ontario --. 5 -2- The facts of the present case are relatively straightforward, although the surrounding circumstances relati:ng to the operation of I . . this Board present some difficulties. The, grievor is a nine year employee of the Liquor Control Board.of Ontario, who was at the time of his discharge on April 28, 1978 employed at Store Number 33 in Windsor, Ontario. The grievor represented himself at the hearing, anQ.aS iS the Board's'practice in such circumstances, we made every effort to ensure that he had full opportunity to cross-examine witnesses and to make his argument; Mr. Morley, on behalf of the Employer, also extended the grievor every forbearance in the presentation of his case. Unfortunately/the evidence against the grievor was overwhelming, and he was unable to counter the testimony.against him with any solid evidence. The Employer's case reveals to our satisfaction, on the--balance of probabilities, that the grievor suffers from alcoholism. He had a deplorable absenteeism record, none of which could.be directly ascribed to illness of a specific nature, and there were incidents in which alcohol was directly involved. The grievor was absent 14 days in 1975, 19% days in 1976, and a number of days too great to tally in 1977. There were a number of warnings issued, some disciplinary action, and a culminating incident occurred on April 6 and 7, 1978 which involved the grievor reporting to work under the influence of alcohol on April 6, .- being offered April 7 off to recover, refusing the offer and then not reporting for work on April 7; As we view this case, little would be served by recounting the evidence; suffice it to say that we are satisfied that the Employer had just cause to take disciplinary acti:on against the grievor at the material time. We thus turn to the penalty of discharge, and whether that penalty was just and equitable in all the circumstances. The evidence r . reveals that the Employer attempted to put the grievor on its own mandatory referral program for alcoholism. The grievor, in the ~event, I: did not take advantage of this program but, apparently after a crisis of some sort, was admitted to Metropolitan General Hospital‘in Windsor in November, 1977~. On his return to work in December, he had a brief , period of satisfactory service prior to renewed difficulties culminating in hiss discharge. 'The Board-doesnotin any way fault the Employer for its ,treatment .- of the grievor, but we consider it unfortunate that no way could be found to help an employee in such a predicament. There is no doubt that arbitral jurisprudence in general, and the decisions of this Board in particular, have always viewed alcoholism as an illness and not as : : intrinsically reprehensible conduct. Given that absences due to illness are generally considered blameless, there is scope to treat the grievor not as a malefactor but as an employee deserving of compassion and assistance. A review of the Board's jurisprudence, however, reveals a practice of extending extraordinary consideration only to employees who recognize the seriousness of their condition and are clearly resolved to overcome it. The grievor did not exhibit any such resolution. His testimony was. I -4- calculated to minimize his condition, to shift blame and to refuse to recognize his need for external assistance. We were therefore not particularly optimistic about his chances for rehabilitation at the time of the hearing. On the other hand, the grievor has considerable seniority and was, prior'to the onslaught of his present difficulties, well regarded by his supervisors. It is incompatible with a view of alcoholism as an illness to blame the grievor for a failure to recognize his problem and resolve to conquer it; to do so is to turn a symptom of the illness into an indictment. We would, therefore, in light of the nature of his problems and his previous good service, be prepared ordinarily to exercise our discretionary authority under S. 18(3) of the drown ,R’mployees~Collective Bergaining Act. The apparent obstacle in our way is the decision of another panel of this Board, written by,Professor Katherine Swinton, in Re.Cook and Ministry of Labour,.115/78,'which is now the subject Of an application for judicial review by the Employer to quash the reinstatement of the grievor subject to certain conditions relating . to his alcoholism. On the one hand, we do not wish to be seen as cormnenting on the propriety of a decision of the Board which is now subject to judicial review; on the other hand, the business of this Board cannot stand still merely because a party is challenging its jurisprudence. In our view, the &decision is in line with the Board's previous jurisprudence and is a logical development from it. The - .__.. - .._ -.. .._. ~~. .,.....__ -5- decision which we propose to make, since we have no evjdence before US on which we could find that the present -griever has manifested the i, sincere desire for rehabilitation found by the Board in cook, must. go farther even than that decision. We must therefore assume the .risk that, if cock is found to be an excess. of jurisdiction on some of the grounds advanced on the application for judicial review, this decisi:on will alS0 be subject to a similar attack. That is, however, a risk which we think we must assume if the Board is to continue to function at all. In our view, the present grievor deserves another opportunity, for the reasons stated above, to reh~abilitate himself. We s~aw no evidence that he could do so by himself, and's0 we think it proper in the exercise of our remedial jurisdictron to enlist the resources of the Employer to assist him. We have therefore decided on the following disposition of the case:, 1. The grievor is reinstated as of the date of this award in the employ of the Liquor Control Board of .Ontario, without compensation for the time lost due to his discharge. . 2. The griever's reinstatement is to the status of a leave of absence without pay or benefits for a period of six months. This status entitles the grievor to access to the Employer's mandatory referral program. 3. If at any time during this, six month period the grteVOr satisfies the medical consultants in that program that his alcoholism is under control, he shall be returned to employment -6- at a store in the Windsor area at the salary and benefit level with his seniority as accrued up to the time of his dismissal, subject to the conditions set out below. . 4. The grievor must maintain contact with and participate in the referral program, as required by the medical consultants of that program, for at least one year following his return to work. 5. If over a one-year period following his return to work the grievor's absenteeism rate falls below the average for employees in the Windsor area, the grievor's employment shall terminate unless he , can demonstrate that absences clearly.due to specific causes unrelated to his alcoholism were the cause of his failing to meet this condition. 6. Nothing in this award affects the Employer's right to discharge or otherwise discipline the grievor for supervening just cause, either during or after the one year period prescribed above. We regret the specificity of this award, but it represents the only circumstances under which we are prepared to exercise our 2 ~. .~ __.. ‘i ^ I i -7- ;;: ..:. remedial jurisdiction on the grievor's behalf. Within these closely circumscribed limits, we are of the view that the grievor deserves one more chance if he.wishes to avail himself of it. Dated at Toronto, Ontario this 7th day of June, 1979 K. P. Swan. Vice-Chairman I concur A McLean, Member . . I concur H. Simon, Member