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HomeMy WebLinkAbout1980-0558.Burns.81-11-27i ONT*RIO CROWN EMPLOYEES GRIEVANCE. g;WbEMENT IN THE 14ATTER OF AM A?EIT?.=.TIC?: THE CROliX EMPLOYEES COLLECTIVG'I: 3AitGXNIXG ACT tiefore TZE GRIEVANCE SETTLEKZX" EOkR3 Between: Before: OLBE'; :W. Get-s;2 Bur.?s) Griever Fcr the Grievor: E:r. E. Saker, Ge):;eral Secrct~ar> - Sntsrio Liq2cr ?oards xr,.c',Gyee:5 ' ;:i'.Lc:: I 2. ,i :’ :.: 2:. ,i: ‘. i ..~~,, +.. ..~ ,.I ~,‘. .i . . . .~ .’ ..-h ,~ :., .‘. -1 .,a., “. This grievance results from the discharge of the grie:~cr on October 25th, 1980. The letter states that the reason for the discharge is.events that gave rise to the grievot's suspension on. October 8th, 19~80 and his record. The incident that gave rise to the grievor's suspension . - on October 8th, 1980, occurred on October lth, 1980. There are really no facts in dispute with respect to this incident. Mr. Easterbrook, the Store Manager where the g:ievor .worked, testified that on that day he and the qrievor left for lunch at the same time. He expected the grievorito return from lunch at 1:00 p.m. The grievor did not return from lunch at 1:00 2.n. and, indeed, did-not return for the rest of the afternoon shift. Mr . Easterbrook testified that he made several teieF.hone calls to the grievor's home address. He said he received cnly busy signals. After some period of time Easterbrook called his superior and after discussion it was decided that Easterbrook should issue a letter levying a one-day suspension, with pay, against the griever. The authority of Easterbrook to levy a suspension was limited to one day. Further disciplinary action could result, of course, from the incident that gave rise to the one-day suspension levied by the Store Manager. Later that day Easterbook again attempted to contact the 3. grievor to see if he was home so that he might deliver the letter of suspension to him. Some time near S:OO 2.m. Easterbrook taLced to a person on the telephone at the grievor's 'residence. Easterb,--=c:k said that the voice of the person sounded.very young. . Easterbrook also testified Lhatsometi= during the after- noon the,!Assigtant Store Manager came in and told him that t?e grievor3 common law wife had come into the store -and indicate.d that the grievor would not be in because he was sick. Easterbrook also gave testimony with respect to the griever's work performance. The grievor worked in the store as a Clerk IV. However, Easterbrook said that he did not feel that the grievor was. ready for full responsibility in April of 1980. He said tha.t the grievor was not sufficiently consistent with his cash records. He indicated that the grievor was not doing all of the work of a Clerk IV, but that~he was doing all that he was being asked to do. He indicated that the grievor was co-operative but the problem with the griever was inconsistency with respect to cash. In April Easterbrcc sent a progress report on the grievor to lir. Armstrong. That progress report reflects the testimony of Easterbrook before us. The prcgress report says: *His work has been adequate but not exceptional". At a further point the report states: "His work on cash is adequate but, again, his 1ac:k of concentration seems to cause him some prcbleas in balancing his cash". ::.: Finally the report concludes by sa!irg: ?I regret to say that at this time I wculd hesitate to put him the position of responsibility which his- present cla:sification, allows for". Easterbrook also testified with respect to the grievor's attendance at the Store. He said that the grievor's attendance was much worse than other employees' attendance records in the Stcre. However, Easterbrook also indicated that the employees in his Store had a very good attendance record. The Company led evidence to show that the grievor missed 7 l/2 days due to sickness from the time that he commenced working in March of 1980 until the date of his discharge in October of 1980. In comparison, the average loss of time due to sickness for.other employees in the Windso'r area over Lhat time sgan equaled slightly more than 4 l/2 days. Easterbrook said, however; that on the first two occasions when the grievor was sick; the grievor obtained doctors' certificates. Easterbrook indicated that he told the grievor &&.at he did not need these certificates. Zaster- brook did not guesticn the grievor further with respect to sickness before the grievor was discharged. The grievor also gave testimony with respect to the incident of October 7th. His testimony does not conflict with that of Easterbrook. The grievor said that he went home at approximately 12:00 p.m. and that he felt terrible. He did not know what was wrong with him but he said that he had been feeling badly all morning. We2 he arrived at home 'he called his common law wife and asked her to telephone him at 12:45 p.m. He told her that he was sick. The 5. grievor said that the purpose of this call was to make su:e that he . would be awake in time to go to work. _ The grievor.said that he then sat back in his chair and some time later his foot must have nudged the telephone receiver ._ as it had been dislodged while he was asleep. The next thing 'bat he remembered was his wife standing over him shaking him awake some time around 3:30 p.m,. He indicated to her at that time that he did not feel well and she took him to the emergency ward of a hospital. At that time the grievor had blood tests taken and these tests were filed with the Board. The tests, which also had beer. given to tile Employer, indicated no problem. The grievor had been taking tranquilizers and decongestacts: The grievor was taking tranquilizers because of a nervous conditim and deeongestants because of sinusitis. The grievor testified that the drugs did have some effect on him. For example, the grieve: indicated that while he was at work and doing cash, he sometimes felt ? light-headed and questioned to himself whether he was actually fit to carry out the duties with respect to cash. The grievor said that he had several sleepless nights each week and that he often felt tired at work. If no other facts were pertinent, given the outline of that which occurred on the day in question, no discharge, or even dis~~~ll~.e -- ._ 5. could be upheld. However, there are further facts that need be ._ explored. 0. . The grievor is an alcoholic. In 1978, the grievor who had nine year's seniority with the Employer, was terminated because of-his alcoholism. The grievor had at that time a deplorable absenteeis: record. A Board of Arbitration, chaired by Professor Swan, reinstated the grievor. The Board went some distance in deciding to reinstate the grievor because the Board decided to reinstate the grievor even though the grievor had not exhibited any resolution to overcome his alcohol problem. In reinstating the grievor, the Board established several conditions that need be met. These conditions are set out on pages f and 6 of the award and read: 1. 2. 3. 4. 5. 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. The grievor'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. If at any time during this six month period the grievor satisfies the medical consultants in that program that his alcoholism is under control, he shall be returned to employment 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. 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. If over a one-year period following his re',;lrn to WC=:< 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 . 7. that absences clearly due to specific causes un- related to his alcoholism vere 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 fcr supervening just cause, either during or after the one-year period prescribed above. ..~. Forvarious reasons the second and third conditions set out in Swan's award were not met. The grievor was reinstated but during his six month leave-of-absence the grievor did not enroll in a referral program. The grievor indica'ted that he felt that it was incumbent upon the Employer to enroll him in the program as the Employer does run such a referral program. The Employer did not refer the grievor to a referral program because clearly it was unhappy with the award issued by Professor Swan. The Employe: in- dicated that it was, in fact, considering whether to seek judicial review of this award. duties In any event, the Employer reinstated the grievor to~active I :I in March without evidence that the grievor had satisfied is jl / medica ,I consultants that his alcohol problem was under control. The grievor testified that sometime in February on his own initiative he entered into an alcohol referral program. He said that he maintained this program until his discharge in October of 1980. .A letter from Mr. Dobson, the Director of the Connaught Clinic to Union counsel was filed as an Exhibit. In that letter the griever is said to have engaged in a program which required individual .tieekly counselling, attendance at support maintenance groups each week, and a. attendance at Alcohol Anonymous meetings for a trial period of at least two months. Dobson indicated that the grievor maintained his . * appointments and attended 70% of the support maintenance meetings.' Dobson also said that the grievor also attended most weeks at A.A. meetings. In our, view, the letter from Dobson clearly indicates that the grievor was maintaining contact and participating in the referral program. Although Mr. Bradyattempted to discount the griever's commitment because of the fact that the grievor only attended 70% of the group support maintenance meetings, we do not conclude that the grievor lacked the necessary oznnitmsnt. Indeed, the grievor testified that he found the group sessions very difficult and not particularly useful to him, but even under those circumstances, maintained a 70% attendance record. The latter part of the letter from Dobson to Saker indicates that the grievor was making good progress from the time that he entered the program until October 30th, although there was some regression inn the later part of September and October. The grievor was not questioned with respect to this last point made by Dobson, except by the Chairman. The grievor said that Dobson's comment referred not to the fact that he was becoming dependent again on alcohol but rather to the fact that his attitude was not quite so good as it was before. The grievor testified that he ,underwent divorce proceedings during the Summer months. He indicated that the matter was finally finalized sometime in the Autumn. He indicated that this weighed 3 < . . . heavily on his mind and caused him some further difficulty. Hcwever, the grievor was adamant that he was not using alcohol. In cross- . examination by Mr. Brady, the g,rievor frankly admitted that,he had fallen off the,wagon once but that had been the only time during the entire period. There was no evidence to indicate that the.grievor missed any time at work because of this one slip. The grievor indicated that when he quit alcohol, as he put it, "cold turkey" he suffered some serious medical problems. Iie indicated that he went into convulsions and these convulsions raised a high level of anxiety in him. He said that he.was afraid that : , further convulsions might ensue. As a result, and as a result of his sleepless nights, the grievor was prescribed tranquilizers. In some fashion, the dosage on these tranquilizers was doubled. The grievor said that he was not aware of this doubling of dosage, and indeed, his doctor was surprised that the dosage had been doubled. One assumes that the dosage had been doubled simply through inadvertence by either the doctor or the druggist. Mr.,%cDougall, the Staff RelationsOfficer of the Employer, gave testimony. He .indicated that the Disciplinary Committee of the Employer considered a number of things when the decision was made tc finally terminate the grievor. The Committee considered that the grievor had been reinstated under a set of sonditions and therefore the Committee looked at the conditions, together with interim repcrts by Mr. Easterbrook and the griever's degree of absenteeism. @bviousiy the Committee referred to the culminating incident. i 10. Although the grievor filed a written report as reqzire2 by the Collective Agreement with respect to the incident, tir. . ~acRnqal1 indicated that the Board was not much convinced by - . this report as it seemed very similar to excuses given by the grievor for absences prior to his reinstatement under the Swan award. However, it is important to note that there is not one shred of evidence before this Board to indicate that the Employer made any effort whatsoever to attempt to determine the validity of the reasons put forwardby the grievor for his absence on the day in guestion. Counsel for the,Eniployer indicated that there were several reasons for the discharge. Some reasons relate to the conditions, and other reasons are apart from them. In the first place, the Employer says that the condition of remaining in an alcohol abuse program was not met. We have already made comments on this, and in our view, the griovor clearly met Lhe requirements set out in the Swan award by maintaining contact and participating in a referral program. Although it is true that the grievor,went off then program after his discharge because of his anger at the Employer's actions, we are of the opinion that this lapse is not particularly important for two reasons. In the first alace, his lapse occurred after the act of discharge. Although the lapse may have some bearing on whether a board should exercise discretion to reinstate the grievor, in the circumstances the employer can hardiy 'rely on the lapse to justify the discharge which occurred befcre the lapse. Nore importantly, the grievor after a short pericd of time returned to the program and is still in the program at the ._. . ~.._ .__ - 11. present time. . The Employer also says that the grievor breached the-fifth condition set out by Professor Swan in that the grievor’s absenteeism rate fell below the average for employees in the Windsor area. However, it-is important to note that the condition permits the grievor to demonstrate that the absences were not due to alcoholism. The grievor attempted to provide evidence to Mr. Easterbrook as to why he was absent. .He states that he did not lose time because of alcoholism but because of his anxiety state and his sleepless nights. Although it may perhaps be suggested that the grievor's symptoms were secondary symptoms of alcohol withdrawal, in the absence of any evidence to-the contrary, and with the evidence given by the grievor as to why he was absent, we are not prepared to conclude that the grievor has violated the fifth condition set out in the Swan award. This then leaves the Employer with the option of attempting to establish discharge not for breach of condition as set out in the ~? I~ Swan award, 'but fcr normal just cause. The Employer attempted to do so on the basis that the culminating incident, taken together with the grievor's poor job performance and poor attendance record, justifies discharge. In the first place, we are not convinced that a culminating incident did occur. Although the grievor in his letter of esplanaticn indicates that perhaps some action taken by Easterbrook would have.keen i .~ - 12. . warranted, and hence, would appear to be admitting that some incident occurred, on the evidence before us we find it very difficult to reach that conclusion. However, even if we do reach that conclusior., we are of the opinion that the culminating incident is of an extremely minor nature. Moreover, the grievor's record taken together with that culminating incident, simply does not warrant the action taken by the Employer. From the time that the grievor returned tp work until his discharge, the grievor's absenteeism was admittedly in excess of the average of absenteeism in th'e Windsor area. However, it was not grossly in excess of the average and the grievor has testified without contradition, as to the reason for his absenteeism. In each case, the absenteeism appears to be non-culpable. Although Mr. Brady -based part of his argument on the concept of the right of the Employer to discharge even for innocent absenteeism, we cannot conclude that the period of time from the grievor's reinstatement until his discharge, and the absences therein, warrant the apolicaticn of that principle. Even if one considers the grievor's absenteeism rate before the Swan award, that rate taken with the rate of absenteeism after the grievor's reinstatement, would not justify discharge. In other words, the grievor simply was not absent enough after his re- instatement to permit the Employer to rely. on the principle of dis- charge for innocent absenteeism. Moreover, reliance on the previous history of intolerable absences is much weakened because the grievor was absent for different reasons during the period of reinstatement, , and at a much reduced rate. Moreover, we cannot conclude that the Employer can, justify its actions on the basis of the grievor's job performance. I Easterbrcok in his testimony, and in his progress reports, showed some dis- satisfaction with the grievor's work. However, in his view, the .' grievor's work was basically adequate. It is true that he felt-that the grievor lacked sufficient concentration to be given all of the responsibilities of a Clerk IV, but ultimately the fact remains Lnat he felt that the work was adequate. In our view, the Employer simply has not produced grounds to justify its discharge. It may well be that the employer was not happy wi&A the award issued by Professor Swan. Whether this Board would have issued such an award is irrelevant. The award was _ issued by Professor Swan, and since it was not challenged by the parties, was binding upon them. In our view, the Smployer mada little or no effort to implement the spirit of the award and the conditions laid down by Swan. However, as Mr. Easterbrook said, the Employer is not a,social agency and need not be a wet nurse. On the other hand, the Employer, given the set of conditions laid down by Swan, and the efforts of the grievor in that,direction, must act with a certain degree of fairness. In our view, the grievor,was making a legitimate effort to meet the conditions laid down by ?rofesso= Swan. 'His attendance record and work performance, even taken together, had not-deteriorated to the point disciplinary action by the Rp1cye.r was justified. Indeed, it is important to note that the Employer took no disciplinary action between the grievor's date of reinstatement and the grievor’s date of discharge. Finally, the culminating incident, if one exists, is extremely minor in nature. In all of these cir- cums tances , we are of the view that the grievor should be reinstated with fill back pay and no loss of seniority. i4. However, one further point does cause scme concern for the Board. The grievor under the Swan award had to remain in a referral program for a period of at least one year following his . return to work. Because of the action of the Employer in discharging the grievor, there is some doubt as to whether this condition has been. met. The grievor simply did not remain at work for a period of one year due to the discharge. In our view, it is important that the grievor continue to recognize his overriding Rroblem and continue to deal with it. Accordingly, although we reinstate the grievor with full back pay and no loss of seniority and benefits, it is our view that the grievor should remain in a referral program for a period of at least one year following this second reinstatement. Accordingly, the Board award that it is a further condition of his reinstatement that the grievor maintain contact and participate in a referral program for at least one year following the date of this award. CATED at London, Ontario, this 27th day of November, 1931. W. B. Rayner. Vice Chairman c/ I. Thomson, Nember Y-2 #&? / I'. ec am, Me er