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HomeMy WebLinkAbout1982-0592.Durnford.83-03-01IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (R.G. Durnford) Grievor - And - The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer Before: M.R. Gorsky S. Kaufman W. Lobraico Vice,Chairman Member Member For the Griever:- N.A. Luczay Grievance Offi,cer Ontario Public Servide Employees Union For the Employer: D.W. Brown, Q.C., Counsel Crown Law Office Civil ilinistry of the Attorney General Hearing: January 19, 1983 -2- AWARD The Grievor was at all material times a Grader Pool Operator, employed by the Ministry and has a seniority date of September 8, 1970.He grieves his discharge,particulars of which are set out in Exhibit 4 ,being a letter hand delivered to the Grievor from H. F. Gilbert, the Deputy Minister, Ministry of Transportationand Communications. The said letter is as follows: Sinistry of ;‘r?nsportation and :ommunications East Buildinp 1201 Wilson Avsnuc DownSview Ontario M3t.4 LIB 416/246-36-M September 17, .1982 To BE HAND DELIVEXED BY DISTRICT ENGINEER OR DESIGNEE Mr. R.G. Durnford, 30x 473, Coldwater, Ontario, LUK l.Ezo Dear Mr. Durnford: I hav.e received a report and recommendation from Mr. A. Wittenberg, my.designee, following upon the hearing which he ~conducted on September 3, 1982, at which you were present. I am satisfied that, during working hours on August 25, 1982, you operated a Ministry-owned vehicle while heavily under the influence of alcohol, until intercepted and charged by the Ontario Pro- vincial Police. -, 3 - Yob have had considerable experience with the Ministry as an Equipment Operator, and you had, on November 18, 1976, acknowledged having read the Ministry Circular No. 76-043 which repeated the Ministry's long-standing total prohibition of the operation of Ministry equipment while under.the influence of alcohol. A similar prohibition is contained in the Oper- ator's Handbook. I am informed that you have been charged bye the Ontario Provincial Police with: 1) Impaired Driving, Section 234, Criminal code of Canada. 2) Alcohol in the blood in excess of 80 milligrams in 100 millilitres of blood, Section 236, Criminal Code of Canada. 3) Liquor in the Vehicle, Section 48.-(l),, Liquor Licensing Act. I cannot over-emphasize the serious view taken ?f your total disregard of the Ministry's long- itmaing policy with respect to the operation of a Yinistry vehicle while under the influence of alcohol, Mrticularly in view of the Ministry's responsibility 0th for the safety of the travelling public ~a.na as the licensing authority for the Province. I regret, therefore, that after due consideration ,of all factors, induahng your length of service, I sust inform you that, in accordance with Section 22.-(3) of The Public Service Act, R.S.O. 1980, Chapter 418, you are hereby dismissed from employment for cause, and that your last day at work will be Friday, October 1. In view of your length of service you will be continued on the payroll until Friday, October 15, providing you with two weeks of paid time in order to seek other em- ployment. If you consider that you have been unjustly dismissed, you may file a grievance in accordance with the provisions of Article 27.6.2 of the Collective Agreement with respect to Working Conditions and Employee Benefits. Harold Gilbert, - ,.. .a>- I -1 -- -4- Mr. Gilbert did not testify and his letter must speak for itself. The basis for thedischarge,as disclosed by the letter, is the fact that the Grievor did,during working hours on August 25, 1982,0perate a Ministry owned vehicle while allegedly "heavily under the influence of alcohol". This, it is noted, was also contrary to the prohibition against operating Ministry equipment while under the influence of alcohol, reference being made to the Ministry circular No.76-043: Under the policy enunciated under circular No.76-043, "because of the special responsibility of the Ministry of Transportation and Communications and the administration of vehicle operator licencing and the need for employees in this Ministry to set,a good example in the area of safe and prudent vehicle operation, any employee in charge of or operating Ministry equipment tii.11 be subject to dismissal if there is any indication that he has been consuming 'alcoholic beverages. It There were certain admissions made on behalf of the Grievor which establish that he was driving a Ministry vehicle some time after 2:30 p.m. on August 25, 1982,after having consumed a quantity of alcohol. He was,thus,clearly in breach of the provisions of Ministry circular No.76-043,and it was acknowledged that the Grievor was well aware of the Ministry's policy. It was also acknowledged that the Grievor had pleaded guilty in Provincial Court (Criminal Division), for the County of Simcoe, on the 27th day of October, 1982,to a breach of s.236 of the Criminal Code: -5- "Having consumed alcohol in such a quantity that the proportion thereof in his blood exceeded 80 miligrams of alcohol in 100 millimeters of blood [and did] drive a motor vehicle . .." In fact, the Grievor acknowledged that the breath-~ alizer test taken at 3:SO p.m. on August 25, 1982 was .120 and that the action taken against him was based on his admissions to that effect, it being unnecessary to await the disposition of the charges against him. It was therefore, irrelevant, for the purposes of the imposition of the penalty, that the impaired driving charge. under s.234 of the Criminal Code of Canada was withdrawn or that a conviction was registered based on the Grievorys plea of guilty pursuant to the charge under s.236 of the Criminal.Code. What.was material were the facts underscoring the event relied upon, being a breach of the Ministry's policy. The Grievor acknowledged that he had also been convicted of having liquor in his vehicle contrary to s.48(1); of the Liquor Licensing Act, but from the evidence it appeared that this matter was not being relied upon as a basis for the . imposition of the penalty,and it only emerged in evidence as a result of a spontaneous admission by the Grievor,which admission played no part in the argument made on behalf of the Ministry. From the evidence of Mr. A. Wittenberg,the District Engineer of District 5 - Owen Sound, to which the Grievor was attached, his recommendation to the Minister that the Gri~evor be discharged was influenced by the reading of .120 obtained as a result of the breathalizer test referred to. Mr. Wittenberg -6- indicated that he had difficulty, notwithstanding the fact that he was no expert, in accepting the Grievor's evidence that he had only consumed three bottles of beer within the period approximate to the taking of the breathalizer test. Mr. Wittenberg, ! on the basis of information received from Mr. Earl Rose, Maintenance and Service Supervisor who, in turn, had received reports from the Ontario Provincial Police officers Investigating the matter, concluded that the Grievor would have to have consumed considerably in excess of three bottles of beer in order to register the reading of .120 and was visibly manifesting signs of considerable physical impairment. In the absence of any expert testimony on this issue, it is not possible to conclude what quantity of alcohol was, in fact, consumed by.the Grievor, but this does not change the acknowledged fact that he had clearly broken the Ministry policy, which is, in all of the circumstances a reasonable one. To the \ extent that Mr. Wittenberg was obviously affected, as he stated, by his view of the matter that the/Griever was "heavily under the influence of alcohol" the evidence merely discloses that he had a blood alcohol level which would on conviction exceed that provided for in s.236 of the Criminal Code. There was no evidence, save for hearsay on hearsay relating to the.Grievor's actual physical condition. The Grievor did not acknowledge any actual physical manifestations of impairment on his part. In the circumstances, I do not feel that the evidence goes beyond that which establishes a breach of the Ministry policy-with respect to driving after having consumed alcoholic beverages. The directive indicates that while the employee in breach -7- this would be the only option viewed as suitable by the Ministry. In the light of all of the circumstances,and recognizing the reasonableness of the policy established by the Ministry, it is evident that the Ministry did not demonstrate through cogent evidence that'the totality of its reasons for discharging the Grievor were founded on proved facts. The only substantial fact which was not established related to the degree of impairment which clearly was a factor which moved Mr. Wittenberg to make his recommendation. He recited this concern to the Roard and was frank in acknowledging the basis for his conclusion. As indicated above, the basis.for such conclusion was not established before this Board. The evidence of the Officer was in turn c~ommunicated to Mr. Rose, who then communicated the Officer's conclusions to Mr. Wittenberg. It would be improper, in the circumstances, to rely on such evidence as proof of the allegations' relating to the ~extent of, the Grievor's impairment. While I have some doubt as to the Grievor being sufficiently candid with the soard, it was up to the Ministry to support its case by cogent evidence and whatever deficiencies exist in the evidence of the Grievor, he did not admit to consuming more than three bottles of beer at a time proximate to his being subjected to a breathalizer test nor did he-admit that he manifested signs of physical impairment- In view of the policy of the Ministry, a decision concernin( the extent of discipline to be imposed could reasonably be affected, by the extent of an employee's 'impairment, and Mr. Wittenberg quite properly considered the degree of impairment manifested by the Grievor, as reported to him. This Board, however, lacked Sufficient -8- cogent evidence to find that Mr. Wittenberg's conclusions concerni~ng the extent of physical impairment were proved. In all of the circumstances, the Grievor, having been acknowledged to be a good employee and having had a service record of over 12 years, this would be a proper case to take the length of service and the admittedly good service record into consideration. This must be weighed against the seriousness of the Grievor's wrongful behaviour. In the circumstances the discharge will be reduced to a period of suspension for a period of six months from the 2nd day of October, 1982. The Grievor shall not be entitled to payment of salary or other benefits from the 15th of October,.1982, however senority will accumulate during the period of suspension. DATED AT London, Ontario this 1st day of March, 1983 M. R. Gorsky Vice Chairman "S. Kaufman" S. Kaufman Member ' I dissect" (see attached) W. Lobraico Member 7:3560 7:2340 . . . DISSENT The reductioi; of the penalty of dismissal to a six month suspension will create serious problems for the Ministry by establishing a precedent for future arbitrations. Based on the evidence this precedent is not justified. The grievor had a previous demotion from equipment operator to labourer because of a license suspension for impaired driving (personal car). He pleaded guilty to an impaired driving charge (breathalizer reading of .120) in a Ministry vehicle and it was acknowledged that four full bottles of . beer were in the cab when apprehended by the O.P.P.. To now allow him to again operate Ministry equipment is an affront to the citizens of this Province. The Ministry has a special responsibility to uphold in these matters and the attitude of the Courts and Arbitrators makes their job all the more difficult. The'deaths and financial losses each year caused by impaired drivers cannot be ignored any longer. To determine the propriety of the disciplinary penalty the Board should have looked at the following criteria: 1. The previous record and whether there were instances of related behaviour; 2. The length of service; 3. Provocation; 5. ; , 4. 5. 6. 7. 8. 2. Whether the offense was premeditated or a momentary aberration; The economic hardship relating to the particular circumstances: Whether the Ministry rules related to the offense were written, fair and consistently enforced; The seriousness of the offense in terms of the Ministry policy and their public obligation: Whether the employee can be expected to carry out his responsibilities on a continuing basis. The evidence indicates that the grievor deserved dismissal based on these criteria and this Board should not condone his behaviour. In a Ministry with about 4000 equipment operators the problem of drinking and driving is very significant. Unless these operators know that drinking, and driving will not-be tolerated the problem will never be overcome. It is quite likely that the Ministry should amend their rules to make dismissal mandatory and legislation should be considered which would prohibit reinstatement was an operator. To have impaired or drunk equipment operators on the highways can result in death and injury to the innocent public as happened in 783/74 Magee and Ministry of Transportation and Communications (Presgrave) unreported; where the grievor was intoxicated (breathalizer reading in Cont'd page..../3 3. I excbss of .080) and the vehicle he was driving struck an automobile driven by a young woman who subsequently died from her injuries. There have also been similar incidents which did not result in a grievance hearing. March 9, 1983