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HomeMy WebLinkAbout1983-0771.Houle.84-03-28ONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hearing: OPSEU (Randy Houle) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer G. Brent Vice Chairman F. Taylor Member P. Camp Member I. Freedman Legal Director, Grievance Section Ontario Public Service Employees Union D. W. Brown, Q.C. Crown Law Office Civil Ministry of the Attorney General March 9, 1984 -_. DECISION The grievance in the above matter is dated November 14, 1983 and alleges that the griever was “unjustly dismissed”. The griever was notified of his discharge by’ letter dated November 3, 1983 (Ex. I), the body of which is reproduced below: I have received a report and recommendation from Mr. W. A. Stewart, my designee, following upon the hearing which he conducted on September 19, 1983, at which you wzre present. I am satisfied that you were charged and convicted with impaired driving while operating an M.T.C. vehicle and lost your licence for a period of three months. I am also aware that this offence took place outside working hours. You have considerable experience with the Minlstry and have acknowledged reading 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. I cannot over-emphasize the serious view taken of your total,disregard of the Ministry’s long-standing policy with respect to the operation of a Ministry vehicle while under the influence of alcohol, particularly in view of the Ministry’s responsibility both for the safety of the travelling public and as the licensing authority for the Province, I regret, therefore, that after due consideration of all factors, including your length of service, I must 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 Thursday, November 10, 1983. In view of your length of service you will be continued on the payroll until Friday, November 25, 1983, providing you with two weeks of paid time in order to seek other employment. 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 Llene fi ts. The Employer did not call any e.vidence. It relied on the following facts which mre agreed to by both parties: 1. Commenced employment during the month of May, 1973. 2. Dismissed from employment on or about the 10th day of November, 1983. 3. At the time of dismissal, classified as Maintenance Mechanic 2. 4. On the 22nd day of August, 1983, Mr. Houle was engaged jn a bridge construction project in the vicinity of White River. Although he resided in the City of Sault Ste. Marie, this project necessitated his staying at a motel near White River while engaged on the project. 5. On the evkning of the 22nd day of August, 1983, after finishing his work, Mr. Houle took an MTC vehicle and drove into the Town of White River where he had dinner and later something to drink. At approximately 1:00 A.M. on the morning of the 23rd day of August, 1983, while returning to his motel and while operating the MTC vehicle, Mr. joule was stopped and arrested by the Ontario Provincial Police. He was subsequently charged with impaired driving and having in excess of .08 mm. of alcohol in his blood. 6. On the 9th day of September, 1983, Mr. Houle pleaded guilty to impaired drivingand was fined and his license was suspended for a period of three months. 7. It has been acknowledged by Mr. Houle that he read MTC policy i/76-043, relating to the use of MTC equipment while under the influence of alcohol and signed the appropriate form (copy of policy attached). 8. There is no previous record of disciplinary problems or similar conduct on the part of Mr. joule and his work reco,rd has been satisfactory. The policy (Ex. 2) referred to in the above statement deals with the use of alcoholic beverages while operating Ministry vehicles. We reproduce only the following paragraph from the policy: Because of the special responsibilities of the Ministry of Transportation and Communications in the administration of vehicle operation, 5E.x employee in charge of or operating Ministry 4 equipment will be subject to dismissal if there is any indication that he has been consuming alcoholic beverages. The griever testified, he is thirty-two years old, married and the father of two sons aged 12 and 9. He has been employed by the Ministry since May, 1973 to work on bridges. He does not require a driver’s licence to perform his work. When a crew is sent to work on projects it is not unusual for him to be in charge of a Ministry vehicle and to do the driving required to transport the crew. The griever has never missed any work as a result of alcohol. He does not have a problem with the use of alcohol and has never been treated for any such problem. He had no previous conviction for any alcohol-related offences. He testified that he feels terrible about what has occurred and is very sorry that it happened. He said that he is very concerned about the effect which this incident has had on his family and has tried to regain their respect after this. He testified that if he were reinstated this would never occur again. We were referred to many cases by counsel, and we have read and considered those cases. As both counsel realized, most of the cases deal with different issues than the one before us; therefore, we do not Intend to deal specifically with each case. Rather we will make general comments on the case before us with reference to specific decisions where we consider that it would be most appropriate. In the situation before us we are faced with an employee who was off duty at the time that he was apprehended for impaired driving. It is conceded that had he been driving his own vehicle at the time there would have been no cause for discipline. We also note that, unlike the situation in Crowley (GSB File Nos. 176183 and 177183) and other cases 5 cited, the griever was not required to possess a valid driver’s licence in order to perform his work, and therefore would have been able to perform all of his required duties even though he had no licence. The fact that the griever was not on duty at the time also distinguishes this case on the facts from Durnford (GSB File No. 592/82). We should state clearly that we agree that there was cause to discipline the griever. Although the events occurred outside of working hours, the griever had the care and control of a Ministry vehicle and so would be under a duty to the Ministry, as his employer, to use that vehicle in a proper manner. Driving that vehicle while impaired is not to be condoned and does not come within the ambit of what would reasonably be considered to be the proper use of his employer’s vehicle. The matter must therefore be considered to be so work-related as to be a proper cause for discipline even though it occurred outside of working hours. The real dispute between the parties is whether the penalty of discharge was excessive. The cases to which we were referred dealt with various matters related to the use and abuse of alcohol. While not specifically agreeing or disagreeing with any of the penalties imposed in those cases, we believe that as a general rule arbitrators in both the public and private set tars have tended to treat the use of alcohol while on duty as a very serious matter. We do not take issue with that approach. In the case before us, however, there is no indication that the griever has ever used alcohol while at work, and the incident which led to his being disciplined here occurred after hours while he was away from home. It was an isolated incident which, insofar as driving while impaired can ever be considered to be minor, was minor and did not 6 involve any personal injury or property damage. Many cases have dealt with the factors which boards of arbitration can and should consider when determining whether penalties should be modified. In this case we Gave an employee with slightly over ten years of seniority and a completely clear record. There is no reason to believe that this was anything other than an isolated incident in an otherwise unblemished career. The griever appears to be sincerely repentant, and that together with his reaction to the consequences which this has had on his personal life leads us to conclude that the chance of this occurring again is very small indeed. When all of the factors in Fhis case are considered, we conclude that the penalty of discharge was excessive. We therefore order that the griever be reinstated effective the date of the hearing (March 9, 1984) without loss of seniority and service-related credits or service- related bsne fi ts. DATED AT LONDON, ONTAEIO TEIS 28th DAY OF March, 1984. J&a -ii?& Gail Brent, Vice-Chairman P. D. Camp, Member \