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HomeMy WebLinkAbout1980-0331.Devlin.89-11-20Between: Before: IN THE MATTER OF AN ARBITRATION Under The CROiiN EMPLOYEES COLlECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD James J. Devlin and The Crown in Right of Ontario Cntario Housing Corporation E. B. Jolliffe, Q.C. A. Fortier D. Anderson Vice-Chairman ?iember Member For the Grievor G. 0. Jones I Canadian Union of Publfc Employees S. Nasso,Steward, Local 767 C.U.P.E. For the Employer A. P. Tarasuk, Counsel R. Younger representing Ontario Housing Ccrporation Hearing September 23rd, lC80 ^ - 2 - Mr. James J. Devlin has grieved against his dismissal by the Ontario Housing Corporation as of April 23, 1980. He had been employed as a caretaker for about seven years, of which he claims to have served five years on a full-time basis. At the outset of the hearing by this Board, counsel for the Employer objected to the authority of Mr. Jones to appear on behalf of Mr. Devlin and also said he questioned Mr. Devlin's right to grieve. After an .adjournment the Board ruled that the objections were unfounded and undertook to give reasons. Mr. Tarasuk argued that the status of Mr. Jones was in doubt. He had been appointed by the Canadian Union of Public Employees I in 1978 as Administrator of its Local 767. a measure extended by the Ontario Public Service Labour Relations Tribunal to August 31, 1980. There were no further proceedings before the Tribunal (Exhibit 3) but Mr. Jones advised the O.H.C. by telegram dated September 4, 1980, that he had again been appointed Administrator by C.U.P.E.'s National Executive Board. To all this Mr. Jones~ replied that his administrative role ended with the election and installation of local officers on the night of Saturday, September 20, ' whereupon he had reverted to his role as a representative of the national union serving Local 767 and its members. It is not the function of this Board to inquire into the internal affairs of a.bargaining agent. Moreover, Article 8 of the applicable collective agreement (Exhibit 1) charges "the Union"---i.e. C.U.P.E., Local 767 --- with the responsibility of carrying forward employee grievances. Mr. Jones had that responsibility when he was Administrator and continued to have it thereafter as a representative. -3- Moreover, Mr. Jones and Mr. Sam Nasso, a local union steward, appeared before us, representing the grievor and the Union. We are no more inclined to question their right to do so than we would be to doubt Mr. Tarasuk's authority to represent the Employer when he states that he appears on behalf of Ontario Housing Corporation. In any event, Mr. Cevlin has sought redress under Articles 8 and 9 of the agreement and he is entitled to representation. To deny him a hearing for dubious . reasons would be a mi\carriage of justice. In a'letter to the Grievor dated April 30, 1980 (Exhibit 4) the reasons for dismissal were given as follows: m Wednesday, April 23, 1980, you were advised by your Senior Caretaker that you were unfit for work as a result of being in an intoxicated condition. You tiere advised to clock out end leave the project. Several hours later on the same day, you were observed by Mr. A. J. Parody, District Housing Manager, in the apartment of a Corporation resident in a state of heavy intoxication. At that point you were relieved of your duties by MZ. Parody. These events took place despite your enrolment in the Cntario Government's program of assistance related to alcohol abuse and four (4) previous suspensions from employment under identical circumstances. Your mst recent suspension was in March 1980. This situation has now become so serious that you present a hazard not only to yourself but also to your fellow employees. It is now considered that you are totally unwilling to comply with the terms of your employment. As a result of the above, this is to advise you that you are hereby dismissed from employment with the Ontario Housing Corporation. Your dismissal will take effect as of April 23, 1980. All monies owing to you and appropriate documentation will be forwarded to the last address on record i.? your personnel file. -4- The employer's Casey is, in brief, that Mr. Devlin was found in a somnolent and intoxicated state on several occasions between 11:30 a.m. and 2 p.m. on April 23, that he had clocked in for work at 7:04 a.m. but had not,clocked out; further that this was the culminating offence ina series of incidents resulting in discipline for similar reasons. The case for the grievor as put forward by Mr. Jones is as follows; even if Mr. Devlin had a disciplinary record, there had been no "culminating incident" because, whether or not he was in a state of intoxication on the morning of April 23, 1980 he was not at work or on duty at any time that day, having been given sick leave by his imnediate supervisor about 7:15 a.m., prior to his scheduled tour of duty, which was to commence at 7:30 a.m.; further, that he was in fact ill and suffering from the effects of pain and medication. As to. events on April 23, the employer's allegations are supported by the testimony of Messrs. A. J. Parody, W. F. Melvin and W. F. Tisseman all of whom occupied supervisory positions at 275 Shuter Street, Toronto, an O.H.C. complex of apartments and maisonettes. These.three were from time to time incontact with the grievor between 11:45 a.m. and 12:45 p.m. on April 23 and their version may be summarized as follows: About noon on April 23, Mr. Melvin, Senior Project Manager at 275 Shuter, was proceeding south along Seaton Street on his way to lunch when he noticed Mr. Devlin "staggering" across the street. He attempted to assjst by'taking the grievor's arm; the grievor said "you can't help me but I am sick" , and grabbed a light standard in -5- front of a maisonette, No.' 102. According to Mr. Melvin, a smell of alcohol was noticeable. The grievor stumbled about IO.feet to the door of No. 102, which was open, and entered. At this time Mr. Jan Fitchenbaum, (Property Manager at Alexandra Park) came on the scene and Mr. Melvin asked him to report the matter to Mr. Parody. Mr. Arthur J. Parody is Manager of the O.H.C.'s District "E" in Toronto, which includes 2,800 housing units. His office is at 275 Shuter, about six unitsaway from N0.102. At noon or shortly thereafter, on receipt of certain information from Mr. Fitchenbaum, he went to No. 102, where he met Mr. Melvin. They knocked on the door and were admittedby a daughter of the tenant. She seemed upset, referred to her "Uncle Jim" and said he was in the sitting room. There they saw him "slumped forward" on a chesterfield. Mr. Parody told the grievor to come to his office, to which "he mumbled an incomprehensible reply." The grievor did not come to the office. At about 12:30 p.m. Mr. Parody returned to No. 102 accompanied by Mr. Melvin Andy Mr. W. F. Tisseman, the Assistant Maintenance Supervisor at Moss Park. Again they were admitted by the tenant's daughter and again they found the grievor slumped on the chesterfield, apparently asleep. Messrs. Parody and Melvin made him sit up; according to them his person had the smell of alcohol, probably beer. Moreover, the eyes were "glazed", said Mr. Parody (although he seemed asleep); he had "an "unsteady stance" (although they had difficulty making him sit up) and his movements were uncontrolled. On being asked by Mr. Parody whether he had been drinking, the answer was incoherent. -6- Mr. Parody then said to the grievor: "I believe you're drunk and I'm suspending you as of now." There was a muffled reply they could not understand. On Mr. Tisseman's suggestion the grievor was asked if he had any keys. The three men heard a mumbled answer which they thought was in the negative. Messrs. Parody, Melvin and Tisseman a77 testified that the grievor's speech was incoherent, that he smelt.of alcohol and that there was no odour of alcohol elsewhere in the apartment. On returning to his office, Mr. Parody reviewed the grievor's file, and telephoned Mr. G. K. Frizelle, Chief of' Operations for the nine O.H.C. districts in Metropolitan Toronto, and Mr. ,R. Younger of Staff Relations, and recommended dismissal. When doing so he assumed that the grievor had been on duty, his regular shift being from 7:30 a.m. to 3:30 p.m. Later Mr. Parody learned that Mr. Devlin had clocked in at 7:04 a.m. but had not clocked out that day; also that he had been advised by the Senior Caretaker to go home.before 7:30 a.m. The grievor, Mr. Oevlin, has a rather different version of what occurred on Apri7 23. He testified he had been suffering from severe abdominal pains, for which he took very heavy medication, including many pain-killers as well as drugs prescribed by his physician. He did not sleep on the night of April 22, nor did he drink any alcoholic beverage. He rose early, had no breakfast and went to his work-place, clocking in about 7:05 a.m. From the clock he went to the coffee-room, where he was joined by the senior caretaker, Mr. Brian McShane. He told Mr. FlcShane he was not feeling well and was advised to go home, being too sick to.work. He took that advice and accompanied tV. McShane to the elevator -7- about 7:20 a.m. However, his nausea was so acute that he did not take the elevator but headed for the wash-room, where he vomited. The grievor says he left the building about 7:25 a.m.. and went to the home of his sister-in-law, No. 102, a three-minute walk. She was away but children were there, including Lorraine, a girl of 17. Still feeling nauseous, he took four or five 222 pills to ease stomach-pains and lay down on the chesterfield. After an'hour or two he went for a short walk to get fresh air, then lay down again. He asked his niece to telephone his wife that she should come and take him home. After another sleep, he went out again, looking (without success) for Mr. McShane, who would have his pay-cheque that day. When returning he. met Mr.,Melvin outside No. 102 and mentioned his sickness. Soon aften\rards he was visited by Mr. Parody and "another man". He added "I remember they asked me for keys and I said I didn't have them. They.were in my coat pocket on the settee. Parody accused me of being drunk and I told him I wasn't. They went out and I lay down on the settee again. Dave Fleming drove me home about 1:15." It appears that the only conversation Mr. Oevlin recalls was the second one at about 12:30 p.m. not the first one shortly after 12:OO. In cross-examination the grievor denied having had anything to drink either the previous night or the morning of April 23. There was no reason for him to smell of beer. However, due to lack of sleep and excess medication he "could have seemed drunk". Before seeing Mr. Melvin he had vomited, but he denied needing help from Mr. Melvin in returning to No. 102. When lying down he was so sick he could not control himself. He suggested that perhaps the smell of vomit had been taken for a smell of beer.. When questioned about the keys he had not realized that'they were -8- in his coat. If he failed to keep an appointment with his physician that day it was because he was too sick to go. Mr. Brian McShane, senior caretaker, also testified. He recalled meeting the grievor in the "lunch-room" about~ 7:lO a.m. on April 23. The grievor "was sitting with his head down. He said he was on medication and had to see his doctor at 12. His speech was slurred. He agreed,to go home. He was unsteady on his feet........ We were sitting at the same table a few feet apart......1 can't say whether I smelt anything. I said, if you're not feeling too good, why don't you go home? There were no supervisors around, so I told him what I thought he should do...... We walked as far as the elevator; he said he had to go to the wash-room, so we parted." Mr. McShane also said the grievor expected his pay-cheque, and “I went and saw him at 102. The girl sent me to the living room. He was asleep. His wife arrived and I gave the cheque to her." The witness said he did not ordinarily have authority to send a man home, "but in the absence of superiors I acted". In every other week he does time cards and they are checked by his own supervisors and “If I had done the cards that day I’d have marked him sick." . Mr. McShane was questioned about the first sentence in the dismissal letter (signed by Mrs. 6. J. Niddrie of the Metro Housing Operations Branch) which alleged: "On Wednesday, April 23, 1980, you were advised by your Senior Caretaker that you were unfit for work as a resu7.t of being in an intoxicated condition." He denied it: "No -9- 1 didn't say.that. I haven't said that to any one." The witness said he had been asked by Mr. Melvin (later on the same day) whether he thought Mr. Oevlin was "under the influence". His reply was that he did not know, and he said the same to Mr. Parody a day or two later. "No, I never said I didn't want to answer - - just that I didn't know...... when I went to 102 I was close enough to touch him . . ..Can't say whether I smelt alcohol." Mr. McShane also denied a statement in the dismissal letter . that he had advised the grievor "to clock out and leave the project." He coufd not recall having mentioned the clock. He remembered having seen Mr. Oevlin "under the influence" on previous occasions and agreed that the symptoms exhibited on April 23 were somewhat similar. Testifying in reply a few minutes later, Mr. Parody quoted Mr. McShane's words on or about April 24 or 25. "He related to me I that in his opinion Mr: Oevlin was drunk but that he would not be in a position to state that elsewhere and.that he had advised Oevlin to clock out." Ordinarily, he said, a sick man is told to report to the Maintenance Supervisor and clock out. However, he did not think there are written rules about clocking in and out. The "availability times" are spelt out in the collective agreement. Reference must now be made to Mr. Oevlin's medical history in April and May. He had complained of his ailment to Or. A. J. Anderson on or about April 17 - - - i.e. six days before April 23. Exhibit 10 is a note apparently signed by Or. Anderson recording that appointments with two other physicians were being arranged. Exhibit 11 is another note apparently signed by Dr. R. B. Law and dated April 25, recording that "Mr. J. Oevlin had abdominal pain yesterday. We are presently - 10 - investigating him for rectal bleeding. Dr. Anderson is the specialist attending Mr. J. Devlin." Exhibit 12 is a certificate by Dr. Anderson, dated April 28 that "Mr. J. Devlin has been suffering from abdominal pain - - - under investigation and has been unable to work from 22-4-8 to 30-4-80." Finally, Dr. Anderson's certificate of May 9 (after tests had been completed) stated that Mr. Devlin had been suffering from "active duodenal ulcer and bleeding hemorrhoids" and was unfit to work'during the period from April 23 to May. Mr. Devlin said he did not know what the trouble was until Dr. Anderson made his diagnosis. What he knew was pain and resulting sleeplessness which led to excessive medication. Mr. Oevlin also admitted that alcohol had often been a problem for him. In December, 1978, he had been directed by letter (Exhibit 9) to take a medical examination "to help you determine what is causing your unsatisfactory work perfonance". This followed a series of complaints,warnings and one suspension; eventually, in the summer of 1979 he spent three weeks at the Government's Addiction Centre. His testimony is that the program was helpful and he had no trouble for the next nine months. He also said in testifying that "Since then I can take it or leave it. I usually buy a dozen beer for the week-end. I might take liquor for a holiday or a birthday." However, it is conceded that on March 17, 1980, about nine months after leaving the Addiction Centre and a few weeks before April '23. he, received his fourth suspension in 16 months for being~drunk or impaired while on duty. Mr. Peter Sumaruk was Maintenance Supervisor at Moss Park from June, 1978, to August, 1979. On November 23, 1978, he made a note that while inspecting floors at 275 Shuter Street, he had found Mr. - 11 - Eevlin in an impaired condition. In the presence of Mr. McShane he gave what he termed a "final warning"; but added that "Mr. Devlin still insisted that he had not been drinking and does not have a drinking problem:' Previous warnings had been given: There followed on December 15, 1978. a two-day suspension; on May 24, 1979, a five-day suspension; on June 15, 1979, a 10 day suspension, and - as already mentioned - on March 7, 1980, a five-day suspension. When Mr~. Sumaruk visited the grievor at the Addiction Centre in the sunrler of 1979, he received an assurance that "I won't be drinking any more." In argument Mr. Tarasuk said the evidence of Mr. McShane was of little value; being a lead hand and a union member he was unwilling to speak candidly about the grievor's condition on April 23. He said the evidence of other witnesses should be accepted. Three agreed the man was drunk at noon on April 23, a scheduled working day. The employer had done everything possible to rehabilitate the grievor, but in vain. In a state of intoxication he would be a danger to himself and others when handling equipment such as a heavy floor-polisher. On behalf of the grievor, Mr . Jones said the evidence showed no culminating incident. The grievor had not been at work on April 23; he was sent home 10 minutes before his starting time. 'Being very ill he went to a relative's home nearby. He had a relatively good record of attendance,'which did not suggest chronic alcoholism. The first parag~raph of the dismissal letter was grossly inaccurate and showed carelessness and undue haste in reaching a drastic decision. The initial suspension by Mr. Parody had been imposed during the lunch hour when a77 employees were off duty. Mr.‘ Jones referred to previous awards by the Board and said that if there was no culmina,ting incident the griever should be reinstated; if - 12 - there was in fact a culminating incident the proper course would be to reinstate him subject to appropriate conditions. In the opinion of the Board, the empJoyer's decision to dismiss Mr. Devlin can be easily understood. Ouring a scheduled working day he had been found asleep, incoherent and completely incapable of performing his duties. .In view of his record, it was assumed that he had been drinking and was very drunk. It was also assumed that the 1979 rehabilitation course had failed, the case was hopeless and therefore employment must end. It is of course impossible to reconcile the grievor's version of the facts with the testimony of three supervisors. The Board's view is that the truth lies somewhere between the two versions. The ailments eventually diagnosed by Dr. Anderson - - - "active duodenal ulcer and bleeding haemorrhoids" undoubtedly caused much distress and pain. It was natural but unwise for the grievor to resort to pain-killers as well as the prescribed medication. If, as seems likely, he also resorted to alcohol for relief, the combination of drugs and even one drink (but no breakfast) would have,serious consequences. He struggled to the work-place, clocked in early. but soon gave up, with some encouragement from Mr. McShane. He not only failed to clock out; he also failed to keep a medical appointment at noon. The failures are not surprising in view of the fact that - - as he and other witnesses agree - - - he could not "control his movements." As Mr. Oevlin was not at work or on duty at any time between 7:30 a.m. and 3:30 p.m. on April 23, this Board'cannot accept the theory - ~13 - that he was drunk on the job. On the other hand, he was undoubtedly unfit for work that day, whatever the reason. If there was an offence, it was that of going to the work-place, clocking in at 7:04 a.m. as though he was ready, willing and gable to start work at 7:30 when, as he ought to have recognized, he was in no condition to do any work whatever that day, a fact quickly noticed by the Senior Caretaker when they met in the lunch room. Mr. Devlin had 22 days of sick leave standing to his credit. If his'judgment had not been clouded by pain, sleeplessness, drugs and probably a little alcohol, he would have stayed in bed that morning and made every effort to keep his medical appointment at noon. The Board's view is that an employee's obligation to an employer is not met by putting in an appearance at the work-place. There is a concomitant duty to arrive in a condition of fitness to perform the duties for which he is to be paid. Sick leave credits are there; they are to be used when sickness causes incapacity. The conclusion of the Board is that there . was in fact a culminating incident, although the offence was not exactly the kind of offence the employer had in mind when imposing the penalty of dismissal. The Board is troubled by the impression that in 1978, 1979 and 1980, notwithstanding four suspensions and a three-week sojourn at the Addiction Centre, the grievor did not become fully convinced that alcohol is wrecking his career and probably his health as well. We are unable to accept his somewhat casual remark that "I can take it or leave it." By ~ this time he should know that he is not one who can afford "a dozen beer for the week-end" or some liquor on a holiday or week-end. After four - 14 - suspensions iri 16 months - - - all for the same reason - - - it ,ought to have become clear to Mr. Oevlin that he is incapable of controlling his habit. If it has been made clear at last by the dismissal, then the latest experience may well be a blessing in disguise. To be blunt, for him the only remedy is total abstinence. If he fails to accept that obvious conclusion, he will not hold any job for long. The employer is to be commended for having arranged treatment at the Addiction Centre in 1979. Unfortunately, Mr. Oevlin's loyalty to that program lapsed after nine months,as he himself has admitted. For the relapse, he must accept responsibility. No one can be expected to'nurse him toward full recovery on a day-to-day basis, although there are members of Alcoholics Anonymous who could be helpful. Notwithstanding the comments made above, the Board is of the opinion that one more effort should be made to rehabilitate the grievdr. There can be no guarantee of success, because the primary responsibility for achieving success is his. For this reason, we are not prepared to find that he should be reinstated unconditionally. In this case the Board's view reflects what was said by Vice-Chairman Swan in sums 120/78 (a somewhat similar case) at page 3, e.g., "The evidence reveals that the Employer attempted to put the grievor on its own mandatory referral program for alcoholism......On his return to work . . ..he had a brief period of satisfactory service prior to renewed difficulties culminating in his discharge." The Board went on to say: - 15 - The Board does not in any way fault the Employer for its treatment of the qrievor, but we consider it unfortunate that no way could be found to help an employee in such's predicament. There is no doubt that arbitsal 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 qrievor not as a malefactor but as an employee deserving of compassion and assistance. In this case the Grievor has considerable seniority and in earlier years apparently enjoyed a good record in the Merchant Marine. As was said in. BWIS: "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." Responding to inquiry at the hearing of this case, Mr, Younger has since provided the Board and Mr. Jones with copies of.the Ontario Government program relating to alcoholism and a similar program applicable to Crown personnel such as employees of the Ontario Housing Corporation. Significant passages in the latter are the following: 'Where possible, every reasonable means will be utilized to restore the employee to normal work performance and productivity, but the employee must agree to accept referral for assessment and identification of the problem......where the employee is identified as being ill, use of sick leave credits and other assistance may be granted as required." In our view, the grievor's last and best opportunity to face reality and win rehabilitation‘is to be found in the admirable program quoted above. It is also (in all probability) the last opportunity society in general and the Employer in particular will have to receive useful , - 16 - service from a citizen now aged 54.. In concluding that the grievor should be given one more chance, the Board is not to be taken as minimizing the gravity of his misconduct on the morning of April 23. In his book, "Collective Agreement Arbitration in Canada", at pages 293-4 Professor Earl Palmer has cited eight cases in support of the proposition that "reporting for work in an impaired condition provides valid grounds for disciplindng an employee". 157Re Lxuninion Oilcloth & Linoleum, 5 L.A.C. 1924 (Lippe. 1954 - -Que.): Re,Inco 13 L.A.C. S(Iane, 1962); Re Ford Motor, 14 L.A.C. 303 (Cross,1964); Re Phillips Electrical, 15 L.A.C. 3(Arthurs, 1964); Re Hawker Siddeley; 15 L.A.C. 40 (iianrahan, 1964); Re Great Lakes Forgings, 15 L.A.C. 439 (Palmer, 1965): and Re Tagqart .Services, 16 L.A.C. 217 (iianrahan, 1965). This even has been extended to what is popularly termed a "hangover" Re Regent Refining,.15 L.A.C.215(Lane.1964). At the same time, however, the Board is concerned with the need for rehabilitation, and its feasibility. If the.effects of treatment can endure for nine months (as seems to have happened in this grievor's case)it is believed possible that further treatment would result in a permanent cure, provided he is prepared to make a greater effort. The remedy we think proper is similar to that unanimously formulated 'by the Board in e. That decision was consistent with the approach taken in previous decisions, notably Cook 115178. Attempts to overturn both Cook and Burns were not successful. Our conclusion is as follows: 1. The grievor. James J. Oevlin, is reinstated as of the date of this award in the employ of the Ontario Housing Corporation, without compensation for the time lost due to his.dismissal. - 17 - 2. The grievor's reinstatement is to the status for a period of six months of a leave of absence without pay or benefits, except that he shall be entitled to pay corresponding to his sick leave credits as of April 23, 1980. Such status will entitle him to access to the referral program applicable to Crown personnel, and it is a condition of this award that he avail himself of such assistance as may be offered by th,at program. 3. If at any time during the six months specified above the grievor satisfies the medical consultants responsible under the program that he has recognized his problem and that his alcoholism is under control, he shall be returned to employment at an O.H.C. location in the City of Toronto 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 its medical consultants, for at least one year following his return to work. 5. Nothing in this award affects the employer's right to dismiss or otherwise discipline the grievor for supervening just cause, either during or after the one-year period specified above. 6. In the event that the grievor elects not to enter the above-mentioned referral program, his dismissal must be confirmed and it will be deemed that his grievance has failed. 1 Dated at Toronto, Ontario, this 20th day of November 1980 Edward 6. Jolliffe, Vice-Chairman I concur Andre Y. Fortier, Member I concur Dan Anderson, Member