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Home My WebLink About1983-0261.King.83-10-20261/83 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: M. R. Gorsky J. Best E. A. McLean For the Grievor: J. K. A. Hayes Counsel Cavalluzzo, Hayes &, Lennon Barristers & Solicitors For the Employer: R. R. Dunsmore Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors Hearing: August 19, 1983 OLBEU (Wayne King) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer Vice Chairman Member Member -21 DECISION The grievance in this case arose following a letter -(Exhibit 5) , having been delivered to the Grievor, Mr. W. D. King who is a Clerk 3 employed by the Liquor Control Board of Ontario in Store 198, West Hill, Ontario from F. B. Rankin, Director of Store Operations.. The letter is as follows: Dear Mr. King: This refers to recent events which causedyour manager to notify you of possible discipline by letter of March 11, 1983. On March 10, 1983 you presented late and in an unfit condition having, mission, consumed alcohol prior to the As disciplinary action for this yourself for work by your own ad- shift. improper conduct you are suspende? from duty without pay for 3 days namely March 10, April.12 and April 13, 1983. You are warned that any repeat of such conduct will attract more severe disciplinary action. It would appear that ycu may well have a problem in the use of alcohol and we require that you contact our Medical Director, Dr. R.F. Hetherington, at 963-1890 to discuss the situation. You are required to sign and immediately return' the enclosed copy of this letter acknowledging that you fully understand its contents. Yours truly, FR:mb E.B. Rankin Director of Store Operations. -3- There was no real dispute raised to the evidence of the event which resulted in the discipline imposed as oLtlined in Exhibit 5, and I would find that the statements contained in the second paragraph of that Exhibit are an accurate reflection of what took place. It was also acknowledged that Mr. King had received a one day suspension without pay in 1982 for reporting to work on April 7, 1982, in an intoxicated condition. It was suggested on behalf of Mr. King that the imposition of a three day suspension was not a reasonable response on the part of the Employer. It was further submitted that this conclusion wasp supported by the response of Mr. W. G.~ Walters, the Manager of Store 198 who delivered the following letter to Mr. King on March 11, 1983 (Exhibit 3): 10 Mr. 7. YIyn FROM i:.C. lidtere .%x-e 198 I.kll-lcger lkst F-ill Store 198 west linl "" %rch 11,1983 The purpxe of this letter is to Ecivise you that y0u were relieved from duty on Xcrch 10th. 1933 because you did present j0msel.f for duty et 3.10 pa. on the above mntioncd dcy iu en iutoxicztsd con2ition.ls.a resultof this wcEtdisciplintu-y action ney b, t&n a.gainst you. Uiithin three (3) cclender do from receipt of t:his letter,yuu are required tb sukzdt a uritten &&Bent ,by re@terti nsil,to the Director of Store bperetions in which you are to explain the setter which has redted in this action. The Eosrd's decision co?lccrning tbis.oatter will be mcde knom to you in due course. c.c. Xrector Sbxe ljperftions J ti. i. biters Aree !hxlager District Supervisor xan~per Store File - 4 - It was argued that Mr. Walters, by his response to the Grievor's conduct, had indicated his belief that a one day suspension without pay represented appropriate discipline for the Grievor's conduct on March .O, 1983. It is a sufficient answer to this position that Mr. Walters did not, on March 11, 1983, know of the earlier act of discipline arising out of the Grievor's similar conduct in 1982, above referred to,and the Grievor was well aware that the response of the Employer awaited the further consideration of the Director of Store Operations and others. I would find that the disciplinary suspension for three days imposed by Exhibit 5 was for just cause and that there were no facts justifying a reduction of the penalty. The Unions submitted further that the actual penalty imposed on the Grievor was greater than a three days suspens~ion without pay. Reference was made to Articles VIII and X, which are as follows: ARTICLE Vfff day of December in the same year. 8.3 An employee who commences his employment after the first rc~ularworkingdilyofanattmdance yrarirenlitlrd. lai [cl an attendance credit in days computed by multi- plying by one and one-quarter (1%) the number of whole months remaining in the attendance year cal- culated from and including the date of ~ommrncr- men, of his service; and fbl where he commences his service after the first rrgu- lar working day but nor later than the twelfth (12th) regular working day of his first month of service. to an suendancecrrditof three-quarters(Y adayin respect of his first month of service. 8.4 An unployce is entitled to auendancc credits under Article 8.2 in respect of a calendar month in which hr is at work or an leave-of-absence with pay for al least ens (II full day. Nowilhsunding the provisions of Article 8.4, an emplo ee is not entitled to attendance credits under Article 8. 4, m respw of a month in which the employee is absent from work. (81 without leave; fbl by removal from employment for cause; or (cl wilhoul pay for the whole calendar month. ARTICLE X ATTENDANCE GRAT”lTY 10.1 (al Where an employer appointed prior to November I, 1965 who has completed five (51 years continuous service ceases to be an em paid an amounl compute 1 loyee. he isentitled to be by multiplying half(H) of the number of days in his attendance credits by the annual Salary to which he was entitled at the dare he ceased 10 be an employee and dividing the product by260; but ~hc~o~alamountshall notexceed hnlf(Yl) of the annual salaw~ (bl Employees appointed on or after November 1 1965 and before January 1: 1970 must co,,, years continuous serwce to be eligible P fete reb ,101 or such gratu- ity on termination but the 101al amount shall not exceed half (‘5) of the annual salary. ICI Empfoy,eesappointrd,onoraf~rrJanuary I 1970are “01 enfIlled 10 beneftts under this Arti& but are emitled 10 severance pay under Article I 1. -5- Because of the penalty resulting from the loss of 1 l/4 attendance credit days for the months of March and April 1982 arising out of the operation of Article 8.5, the Union took the position that the actual penalty suffered by the Grievor was greater than a three day suspension without pay. Additional loss pursuant to Article 8.5 was 1 l/4 attendance credit days "in respect of a month in which the employee is absent from work . . . (b) by removal from employment for cause." The suspension in this case represented such a removal for cause. Because of the loss of the attendance credit days suffered by the employee, it was submitted by the Union that the Employer should have evaluated the penalty in the light of Article 8.5 and adjusted the length of the suspension accordingly. That is, in imposing a disciplinary suspension, the Employer should have considered the total disciplinary impact arising out of the operation of Article 8.5. It was also submitted that, in the circumstances the "splitting" of the suspension over a period of two months, which increased the,impact of Article 8.5 was arbitrary. The evidence of the Employer on this point was that the imposition of the suspension so that it would occur in two separate months (March and April of 1983) was a necessary accommodation to scheduling requirements. I am satisfied that the scheduling of the days of suspension was, not arbitrary and was not intended to further penalize the Grievor. There was no evidence to demonstrate that the penalty might have been imposed so that the suspension -6- could take place in a single month without creating a scheduling problem for the Employer. Accordingly, this objection to the Employer's conduct fails. When the parties entered into the collective agreement they recognized that a "removal from employment for cause" would automatically trigger the loss of attendance credit for the month(s) of removal. The loss of attendance credit is a result of agreement, is automatic, is not imposed by the Employer,is non-disciplinary and in any event represents a specific penalty. The only discipline before this Board is one for a suspension of three days without compensation. That period is not unreasonable, given the circumstances. Accordingly, there is no basis for reducing the penalty. The Grievor, was guilty of a serious breach when he reported to work in an intoxicated state. On the facts before this Board I regard the detriment suffered by the Grievor, if it can be considered to be a five and one-half-day penalty as claimed by the Union,to be justified. Accordingly, the grievance is denied. DATED AT London, Ontario this 20th day of October, 1983 e . . Vice-Chairman "see partial dissent" -4 E. McLean Member 7 .- L - 7 - Dear Professor Gorsky: Re: Grievance Settlement Board Case 261/83 Wayne King As I have been unable to contact you by telephone I am enclosing my comments on the above noted case. I have no quarrel with upholding the three day suspension. However, I do feel it is arbitrary for the Employer to require the suspension to be served over a period of two months. It is my opinion that the three days should have been served together and that the grievor should be granted the credits that he lost as a result of the Employer's action. aours truly,