HomeMy WebLinkAbout1984-0329.Hawes.85-02-27IN THE MATTER.CF AN ARBITRATION
Under
THE CROWN~EMPLOYEES CGLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OLBEU (D. Hawes)
- and -
Grievor
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Before:
For the Grievor:
For the Employer:
Hearing: January 25, 1985
Employer
G. Brent Vice Chairman
J. Best Member
L. D. Foreman Member
M. Levinson
Counsel
Koskie & Minsky
Barristers & Solicitors
P. Jarvis
Counsel Hicks Morley Hamilton Stewart Storie
Barristers & Solicitors
2
The grievance (EX. 1) which gives rise to the matter before us is
dated April 10, 1984 and alleges that the griever was "dismissed without
':
just cause contrary to 3.2 c". The Union also informed us that no claim _.
was being made for compensation. The partiPs raised no objection to the
Board's jurisdiction to hear and determine the merits of the grievance
or to'the arbitrability of the grievance.
.~.
The parties agreed that there was a culminatingincidentin this :
case,. the details of which will be set out below, and that the
culminating incident was one .which would warrant some form of
discipline. They further agreed upon the specifics of the griever's
,past disciplinary record. It was admittedthatthe griever, who has
been employed by the Employer since 1972, was ah alcoholic and that his
alcoholism had led to a series of difficulties over the years, all of.
which had led to disciplinary action by the Employer. None Of the.
disciplinary actions taken by' the Employer ,had been grieved to
arbitration by this Board, and the disciplinary record before us
reflects the penalties imposed by the Employer.
It is agreed that on February 29, 1984 the griever was absent from
work and that this absence was alcohol related. On that day he called
in and told the Assistant Manager "I will not be coming in to work. YOU
can suspend me if you like but I willnotbe coming into work today."
Following this conversation the yrievor received the following letter
from the Employer (Ex. 3):
This letter is to let you know that, within
three days of receipt of this let,ter, you will be
.required to write a letter, sending it ~by
,registerd (sic) mail to Mr. F. B. Rankin Director
of Store Operations, in which you will explain why
you did not report for work, and did not notify me
that you would not be at work on Wednesday
February 29, 1984.
,.. %~.
At the bottom of that letter the griever wrote the following:
I do not know why I did not phone Mr. Cowal and let
him know I would not be in.
There then followed the f"ll&ing letter of discharqe~ (Ex. 2) dated
March 23, 19S4:
This refers to recent events which caused'the
Assistant i4anager to notify you that an
explanantion was required for an authorized absence
on February 29, lY84.
Your explanation has now been considered and
is unacceptable.
In light of the foregoing y"ur complete record
of employment has been reviewed.
As a result it has been decided that your.
employment with the Board is terminated upon
receipt of this letter.
Termination documents wil follow in due'
cour5e.
It should be iioted that all references to the "Board" in the
correspondence set out in this award refers to the Employer. There is
no dispute that the grieiror was absent from work because of drinking on
February 29, lY84. There follows the record of disciplinary notiCes and
disciplinary letters with the qrievor's reply noted, where applicable.
All of this record speaks for itself.
[EX. 41’
(dated February 17, 19114)
The purpose of this letter is to advise you that as
a result of you not calling the store at all Feb.
16 and 17,84, as you were scheduled to work 3 PM.
?I=. Robert Ford called your home Feb. 17,R4 at 3.20
PM and somebody saidthatyou have been drinking
and now sleeping it off, Disciplinary action may
be taken against you.
Within three (3) calendar days from receipt of this
letter, you are required to submit a written
statement,by registeredmail, t"theDirector of
Store Operations in which you are to explain the
matter mentioned above which has prompted this
letter.
The Board's decision concerning this matter will be
made known to you in due course.
[Ex. 51
(dated March 29, 1983)
This refers to recen~t events which caused your
+upervisor to notify you of possible discipline by
letter of March 4, 1983.
.: On February 15, 1983 having been sent home
from Store #228 becauseof illness you appeared at
store #242 in an obviously intbxicated condition.
AS disciplinary action you are suspended
without pay for a period of 20 working days in the
period April 11 to,May 7, 1583 incltisive.
It is clear that use of'alcohol is intruding
upon your ability to carry out your .work
responsibilities.
You are Required to immediately constilt with
our #edical Director, Dr. R. F. Hetherington, and
to enroll in such program of alcoholism therapy as
he may direct. You are required to provide
evidence of enrollment in such program.
Yoil are required to sign and immediately
return the enclosed copy of this letter
acknowledging that you fully understand its
contents.
[NOTE: On that letter the, griever made the
following notations:
Joined AA in Feb. 1982
Was to see Dr. Iietherinqton on Mar. g/83.
He thought everything looked OKay. Will
contact this week again.1
[Ex. 101
(This was written by the qrievor on March6, 1983
regarding the incident referred to in Rx. 5)
In regard to the Letter received from ~5. R. Ford
on March 4, 1983.
I had been working in office doing books and have
not been uptopar and finally ask to be taken out
of office because of pressure.
I admit 1 have had a drinkingproblem but things
were going fine. I went 5 months the first time
without a drink and 7 months this time to Feb. 15
without a drink and also have been going to AA
meetings at least 2 - 3 times a week and am back on
Antabus pills.
The reason I went in.tb store 242 was to see
MI-. Santoloce if I could get a transfer but have
changed my mind since talking to Mr. Ford.
[Ex.. 61
(dated March 2, 1982)
Consideration has now been given to the incident
which resulted in your suspension during the month
of January.
on two occ.%sions namely December 31, 1981 and
January 23, 1982, you absented yourself without
permission from the store and were notified of
possible disciplinary action. Then on January 25,
1982, you failed to notify the store of your
intended absence. These actions demonstrate a
neglect of duty which cannot be tolerated.
1n light of your previous disciplinary record it:
has been decided that January 2, 1982 andJanuary
23, 1982 (l/2 day) will be considered as suspension
from duty without pay. in addition you are being
suspended without pay for ten other working days,
namely January 25 and March 8, 9, 10, 11, 12, 15,
16, 17, 18, and 19, 1982,
You are to consider this a final warning; further
instances of~misconductwillbe considered cause
for more severe disciplinary measures, including
possible dismissal.
As a condition of continued employment with this
.aoard you are also required to arrange an
appointment with our Medical Director, Dr. R.
Aetherinton, at9631890 and follow the course of
action he may determine necessary in the treatment
of your problems with alcohol.
You are required to sign and immediately return the
enclosed copy of this letter acknowledging that you
fully understand its contents.
[NOTE: The griever's signature appears on the
letter.1
-
[Ex. 71
,-(dated December 29, 1981)
This refers to recent events which caused your
suspension from duty on December 4, 1981.
On that day you were in an unfit condition,to
perform your duties, apparently from taking
prescribed drugs in a way which you know to be
improper.
As disciplinary action you are confirmed to be
suspended without pay for one day, December 4,
1981. You are required to contact our Medical
Director, Dr. R. Hetherington at 9631890 to discuss
your medical condition. Youare warnedthatthis
situation i* a repeat of other conditions which
caused you to be suspended in July and November
1980 and because of this becomes serious. There
must be no repeat-of%~such conduct.
Your are to sign and return the enclosed copy of
this ~&etter therby acknowledging that you have read
and understand its content.
[NOTE: The griever's signature appears on the
letter. 1
[Ex. 81
(dated November 14, 1380)
This refers to recent,events which resulted in your
Supervisor directing a letter to you dated November
1, 1980 requesting *n explanation of your conduct.
On October 28, 1980 you absented yourself from the
*tore for a reason found to be untrue. This action
is a serious and adverse reflection on your j~ob
performance.
As disciplinary action you are suspended without
pay for 5 working days, namely November 24, 25, 26,
27 and29, 1980. The day you were absent, October
23, 1980,‘will be treated as being without pay.
There has been a noticeable decline in your job
performance which is felt may be health related.
Because of this, we require that you arrange an
appointment to consult with the Meditial Director,
Dr. R. Hetherington at 965-4961.
You are warned that any recurrence of misconduct
will be dealt with more severely.
The enclosed copy of this letter is to be signed
and immediately retur"ed~ to the undersigned
acknowledging that you fully understand its
contents.
(NOTE: The griever's signature appears on the
letter. 1
[SX. 91
(dated July 22, lY80)
Consideration has now been given to the incident
which resulted in your stispension of June 28, 1980.
Management is satisfiedthatyouparticipatedin
the consumption of liquor during the working hours
Over the period June 23, 1980 to June 28, 1980.
You admitted to this in the presence of the manager
and assistant manager. This conduct is considered
to be a very serious breach of working rules.
As disciplinary action you are suspended without
pay for,five (5) day; namely June 28, July 21, 22,
23 and24, 1980.
You are warned that any repeat of misconduct will
result in more severe disciplinary action.
The enclosed copy of this letter is to be signed
and immediately returned to the undersigned thereby
acknowledging that you~fully understand its
contents.
[NOTE: 'rhe following appears at the bottom of the
letter along with the griever's signature:
I still protest the above incident and
supension.]
0" February 3, 1984 the griever wrote the following letter (Ex. 11)
to the employer regarding his alcohol problem:
Re letter received from Mr. J. Santdioce on
Feb. l/84 on my return to work..
I was very depressed 6 down and the pressure caused
by myself more So than anything finally got to me.
At this time I realized I had gone far enough and
contacted Mr. Clyde Bennett and ask him to make a"
appointment for me to be sent to Renacen'i Treatment
Centre as this problem had gone on long enough,
this was o" Dee 31/83.
8e made a" appointment for me and we went up on
Jan 3/84 for interview, they ask me when I wanted
to come in and I saidas soon as possible I needed
help now.
They told me to come in on Jan 4/84-which I did for
28 days. I'm sor~ry I have caused all these
problems and hope I have made the right move for
all concerned.
Although the griever sought and received treatment in January,
1984, it is agreed that he had been drinking again on February 29, 1984.
In March, 1984~the griever was~ke-admitted to the treatment centre for
t.wenty-eight days. He testifiedthathe has not taken a drink since
!larch 1, 1984 and the evidence of both Mr. Wade, the Assistant Manager
~~: ;
of the centre, and Mr. Shepherd cdrroborates his evidence on that point. '.
Before dealing with the evidence which is relied on to show the
griever's rehabilitation, we will outline the Employer's evidence
regarding its decision to terminate the griever's employment.
Discipline and discharge decisions are made by a committee of five
supervisors from various divisions and.Mr. Robert MacDougall, Staff.
Relations Officer, who acts as co-ordinator and advisor. Any decision
.which involves a disciplinary penalty in excess of a 30 day suspension
is then referred to the Employer's General Manager for approval. That
was done in this case. The Committee had before it the record, as set
out above, along with the letters written by the griever (Exs. 10 & 11).
The Committee would also be aware of attempts to treat the griever's
problems from references in the letters. Naturally, the committee also
hadbefore it.the details oftheincidentbf February 29, 1984 and was
aware of the griever's statement to the assistant manager.
Mr. MacDougall testified that the committee considered all of the
material quite carefully and concluded that the Employer had made
several attempts to get the griever to realize that he had a very
serious problem with his employment. It decided to discharge him
because, .in view of the entire situation, and the fact that the griever
was in trouble again because of drinking right after he had completed a
course of treatment, discharge was considered to be the only reasonable
course of action since all other attempts at corrective discipline had
failed.
The grievpr's performance appraibals from 1972 to 1983 (Ex~s., 12A-K)
were introduced. aefore dealing with them specifically, we should note
that Mr. MacDougall was 3f the view that the griever's evaluatidfis were
"adequate'!;.aside from the alcohol problem. He also agreed that the
griever &as 1romotedto a Clerk 4 in esriy 1981 andthathisproblems
with alcohol seemed to get worse starting in 1980. Upon reading all of
the evaluations, it is clear that up to and including the 1980
,evaluation (Ex. 12H) the griever had been rated as "average" or "above
average" in all categories. The remarks and recommendations on the "
evalu&tions are all quite favourable, although in 1980 there is a
reference to a "health problem" for the first time. In 1981 the
evaluation form changed and beginning in that year the griever is rated
as "unsatisfactory" in office routine for 1981 and 1982. The comments
which appear on the 1981 and 1982 forms (Exs. 121 & J) indicate that the
griever's problems were interfering with the satisfactory performance Of
his duties. The 1983 form (Ex. 12K) rates the griever as 'satisfactory"
in all categories and bears the following notation:
.~ Mr. Hawes has recently gone through a self help
program, it affects his health and work, I hope
this will help him in his future efforts I know he '
has the ability.
The treatment centre to which the griever referred in his letter of
February 3, 1984 (EL 11) is a non-profit charitable organization
10
.
located on the grounds of sunnybrook Hospital.' It has been in existence
for 15 years and receives referrals from 150-206 employers. !a. Wade,
the Assistant Manager, described the centre as?running a low cost,~ high
SUCCeSS, non-medical programme (he estimated a success rate of around
80%). All those admitted undergo a twenty-eight day live-in; intensive
..>
programme durihg which they are exposed to thnprinciples of Alcoholics .
AIlCXlym0US. While at the centre they atttind group therapy, films,
meetings and lectures, and an attempt is made to introduce discipline
into their lives. Each night they attend AR meetings away from the
centre. After leaving the crntre there is a follow-up programme
involving those who have been through the centre's course of treatment.
It,.i$ suggestedthatalumni attend at least three AA meetings a week.
In addition there is a monthly meeting of alumni at the centre.
As mentioned earlier, Mr. Wade confirmed that the griever has not
had a drink since March 1, 1984. He assessed the griever's chances of
staying away from alcohol as "very good as long as he continues to do
what he does now". Mr. Wade also testified that when the griever lost
his jobthatmayhave been the "shock therapy" whichhe needed at that
time. When asked about the griever's previous course at the centre
after which he "fell off the wagon", Mr. Wade said that it is not
uncommon for an alcoholic to make oneor.more slips until he gets the
programme into his life to deal with his "thinkingproblem", and that
once the programme is in his life it is more uncommon to have a slip.
He was of the opinion that the griever had now hit bottom.and had
accepted that he cannot drink.
The griever testified that he now feels good about himself and that
the made up his mind to stop drinking when it finally,registered what was
going on. He says that he hopes he has his problem under control now
11
and that he would love to have his job back. Ye also indicated that he
feels apologetic for all of the problems which he caused in the past.
The griever confirmed that he has made atttempts to stop drinking
inthepastandthat he saw the Employer's Medical Director about his
drinking whenever that was suggested to him. He also~indicated that he
followed the course of .treatment recommended by thcdoctor on-those
occasions. xe confirmed that he was originally referred to the centre
by the Employer in January, 1984. The griever said that the discharge
was a factor.in his ability to come'to terms with his problem and
described it as the "final shock".
The ~Employer's position is that the grievaace should be dismissed
and that the discharge should stand. It submits that it has a
progressive discipline gystem in place which is designed to bring home
to employees the need to correct their course of conduct or face more
severe sanctions andthat it applied that system to no avail in this
case. It argues that, given its past efforts to rehabilitate the
griever and the failure of those efforts, the only recourse it had was
to discharge the griever. In particular, the Employer asked-us to
regard the record and the griever's statement on February 29th and
conclude that suspensions had become useless in getting the griever to
come to grips with hisproblem. It also argues that there must be some
finality in labour relations and that the Employer has heard
representations from the yrievor inthe past that his problem was under
control only to have the yrievor slip.
The Union's position is that the griever shouldbe reinstated and
that to refuse to give weight to the evidence regarding his
rehabilitation is to disregard Our obligation under s. 19(3) Of the
I
12
Crown Employees Collective Bargainin net to do what is "just and
reasonable in all the circumstances". It aryues that it is in the
Employer's interest to have an experienced employee who is now able to
do his jobandinthe griever's interest to have his job back, and that I_
we should attempt to servetheinterests of boththeEmployer and the
griever if we are satisfied that the griever has been rehabilitated.
~:
The Uriion is not asking that the reinstatement of the griever be without
conditions; however, it is asking that we limit whatever conditions we
impose in a reasonable manner, should we decide to reinstate.
The parties referred us to several cases both in the private sector
and before this Board. We have read and considered all of those cases;
however, we will only comment on some of them in the ~interests of
bre.vity. Although= Corporation of the Citxof Sudbury and Canadian -_-- - ~-
Union of Public Employees, Local 207 (19811, 2 L.A.C.(3d) 161 -__ - -__ - __ --
(P. Picher) is a case of innocent absenteeism, it does deal with the
problem faced in trying to determine whether the employer's judgment of
~the likelihood of reasonable attendance in the future ought to be upset
because of changes in the. griever's condition after the date of
discharge. That board determined that the proper balancing of interests
requires consideration of the correctness of the decision as of the date
that it was made (see page 1751; the board also noted, at page 172, that
the approach taken in disciplinary cases where alcohol was involved was
to modify the penalty if the griever had undertaken a course of
treatment. In that connection we were referred by the Union to several
cases in which arbitrators ha&modified penalties where treatment was
sought for alcoholism. In particular, we were referred to Re dell --
Canada and Communication Workers of Canada (1983), 10 L.A.C.(3d) 285
(Shime) where the griever's alcoholism was not known until after the
13
discharge .and where his rehabilitative potential was assessed; x
&olson's Brewery (Ontario) Ltd. andUnitedBrewery Workers, Local iO4 ~- --
(1983), 12 L.A.C.(3d) 313 (Adell) where there was a history of
alcoholism, and where the griever's conduct was not found to have
warranted discharge, but where strict:conditions were imposed on
reinstatement; and E Laba~tt's Ontario.Breweries Ltd. and Natibtial --
Brewery Workers' Union .L Local 1 (19781,
20 L.A.C.(2d) 66 (Brunner) where __ -
the yrievor did not admit his problem until after his discharge. All of
those cases and the cases cited in theim considered evidence of
rehabilitation which occurred after the discharge in determining what
penalty would be relevant. We note also that the jurisprudence of this
Board has been the same as that of the private sector when considering
disciplinary discharges where alcoholism is involved. See for example
Cook 115/78; Devlin 331/80; Thompson lo/77 and m 558/80.
We find that in this case the Employer's decision to discharge the
griever on March 23, 1984 was reasonable and justified in view of all of
the facts known to it on March.23rd. ~Further, we do not fault the
Employer for,concludingthatithad done everything reasonable in its
power totryto get the grievorto come to grips with his.problem. In
fact, the Employer's actions in attempting to affect a rehabilitation
are entirely commendable, and it should be,encouraged to con.tinue to
atteinpt to rehabilitate employees who suffer from alcoholism. There his
a1s3 something to be said in favour of the beneficial therapeutic effect
which his discharge has had on the griever and about the need,not to do
anything which may undo the benefits.
We further agree that the Employer has had assurances from the
griever in the past concerning his rehabilitation and about his desire
14
to stop drinking. We fully understand the Employer's Skepticism when
faced with yet another assurance of rehabilitation.
On the other hand, the evidence which we have had regarding the
qrievor's steps to rehabilitatehimself on this occasion is positive.
Notonly.has been able to refrain from drinking for longer than in the
past, but he also appears to have finally accepted that he cannot drink.
M r . wade's prognosis was favourable, and it was his view that the
griever had finally reached bottom in March,1984 when he hadhimself
readmitted to the centre. To ignbre this positive evidence completely
would.be to discourage rehabilitation efforts~and to fail to take note
of all the circumstances which are present in this case. In fact, it
was not argued by the Employer that we ought not to receive evidence of
events which occurred after the discharge but that we ouyht.to consider
that evidence in the context of all of the evidence of previous
rehabilitive attempts. AS Professor Adell said in the ~olson's caSe -..
(supra) at page 320:
. . . . let us aSsume that the evidence of the
situation as at the time of discharge convinces the
arbitrator that the company had done everything ~
that an employer could reasonably be expected to do
in an attempt to preserve the griever's employment,
and that the griever had shown himself simply
incapable of making the effort of.willneeded to
preserve or regain his ability to work. However,
let us also assume that the post-discharge evidence
shows that the griever has, contrary to all
expectations, made impressive strides toward
complete.recovery. In such a case, it should not
be held that the post-discharge evidence, however
convincingitmay be, can retroactively erase the
cause for discharge. A reconsideration of the
penalty to discharge may be appropriate, but that
is all. . . . . . . .
What use, then, may be made of evidence of the
post-discharge conduct of the griever in an
alcoholism case? . . . . . . . If the pre-discharge
evidence shows that discharge was indeed justified
as at the time it was imposed . . . . . . . , the most
15
that post-discharye evidence can do for the griever
is~to show that the case is an appropriate one for
the application of compassionate considerations Of
the'sort mentioned above, which may result in the
substitution of a lesser penalty for the discharge.
. . . . . . . . i3y an appropriate case-for a lesser
penalty, I mean a case where the post-discharge
evidence strongly indicates that the griever has
turned himself around in~the period since the
dis.charge.
The grieyqr's record before 1980/81 was a good,one, judging from
the evaluations (Ex. 12). liis. employment problems have $11 been because
~. ..,.
of his alcoholism. If the griever can refrain from drinking, there is
.~. no reason to believe that he will not ba a good employee once.ayain.
The griever is 58 years of age and his age rr.ay wellactas a barrier to
his gaining other employment. The good prospect of rehabilitation, his
age, and his employee evaluations are all factors in is favour.
If the griever's rehabilitation potential is as good as Mr. Wade
believes, then the Employer's interest is not harmed by returning him to
work, and Mr. Wade's evidence does provide a strong basis for accepting
that the griever has in fact "turned himself around in the period since
the discharge". Inthatcase the employment relationship will not be
dead and we neeh not bury it. If, on the other hand, the griever cannot
deal with his alcoholism, then the Employer's interest will not be
served by i-einstatement. We believe that to ignore the evidence of
rehabilitation and to uphold the discharge would be to fail to take into
account all of the circumstances of the case and to depart from the
jurisprudence which gives weight to evidence of legitimate
rehabilitative efforts of alcoholic employees. On the other hand,
simply to reinstate the griever without very stringent conditions would
not be a reasonable course to follow in this case for several reasons.
For one thing, we must recognize that the griever has had unsuccessful
16
attempts to rehabilitate himself in the past and.we must ensure that the . :
Employer can see Some end to its requirement to employ the griever if he
cannot refrain from drinking, Moreover, as a question of policy, we
must recognize that the Employer has done everything that one cduld
reasonably ask of an employer intryingto get the grievorto come to
grips with his problem, and we mustensurethatthe Employer~.does not
see any award oE this Board as tending to discourage efforts to
rehabilitate or deal humanely with its employees.
Because we are ccnvinced that.the griever t&s shown that there is a
strong basis for belief that he is now capable of fulfilling his
employment relationship, we consider that the penalty of discharge
should be modified in this case and that some other form of discipline
should be substituted. Because we are convinced that the Employer took
all.reasonable steps to rehabilitate the griev,or, and because of the
past unsuccessful attempts made by the griever to stop drinking, we do
not consider that the Employer should be compelled to reinstate the
griever yet again should this attempt fail. it is in the interests of
,- everyone that the griever realizes that this is his last chance and that
the Employer realizes that its attempts to rehabilitate in the past have
not been ignored by this reinstatement. Moreover, we have been told
that the griever can never drink alcohol and that his alcoholism is
something that will be with him for the rest of his life. Therefore, in
view of his condition and his previous unsuccessful attempts, something
more than alimitedperiod fortheoperationofthe conditions should
apply. Accordingly, for all of the reasons set out above, we order the
I following:
1. The griever will be reinstated to a Clerk 3 position as of the
date of this award without compensation for the period between
17
2.
3.
4.
the date of his discharge and the-date indicated in paragraph
3 below. He will retain his sereic'e date with the Employer
but will not accrue any service.benefits for the period
between the date of his discharge and this award. This
reinstatement will be subject to..the conditions set out below.
The qrievor's record will br amended to s~ubstitute a
su'spension for the period between the date of his discharge
and the date of this award.
The qrievor's compensation will begin ofi the date on which he
actually commences to work for.the employer or within ten
workinq days of the date of this award, whichever,..+s less.
The.qrievor's reinstatement is made conditional upon the
following:
(a) He must continue his association with Alcoholics
Anonymous and with tie treatment centre with which he has
been associated, or any successor of those organizations,
for the duration of his employment:
(b) Should he be unable to fulfill his obligations as an
employee at any time in the future as a result of the
voluntary ingestion of alcohol, then the Employer may
consider that as just cause for discharge and terminate
his employment forthwith.
we will remain seized of the matter should the parties experience
any difficulties in implementing the award.
18
DATED AT LONDON, ONTARIO THIS 27th DW OE- February , 1985. ;
Gail Brent, Vice Chairman
, / ‘i , , i J 4 l I” ,’ Best, Member