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HomeMy WebLinkAbout1984-0372.Rupert.85-10-08IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Lawrence Rupertl and The Crown in Right of Ontario (Ministry of Correctional Services) trievor Employer Before: M. R. Corsky Vice-Chairman S. D. Kaufman Member D. B. Middleton Member For the Crievor: K. Waisglass Barrister & Solicitor Toronto, Ontario For the Employer: 3. Benedict, Manager, Compensation Branch Human Resources and Compensation Board Ministry of Correctional Services Hearings: August, 3, 1984 May 10, 1985 May 21, 1985 May 22, 1985 The GrieVOr, Lawrence Rupert, was, at the time of his dismissal (effective date, March 6, 1984) a Correctional Officer II, with a date of hire of August 23, 1978, and was employed by the Ministry of Correctional Services in the Waterloo, Ontario, Detention Centre. On March 6, 1984, Mr. Rupert filed a grievance claiming that he had been dismissed without just cause and requested reinstatement and compensation for all lost wages, benefits and credits and the removal from his personnel file of any reference to his dismissal. At the outset of the hearing, the parties agreed that we were not to treat the grievance as being based on an alleged dis- missal without just cause, as.was alleged in the.~grievance filed. We were instructed to treat this case as one where the Grievor had been dismissed from his employment because: he was unable to ..: establish and maintain an acceptable,level of attendance. His absenteeism was to be treated as innocent, and not culpable. The position of the Employer was that it was entitled to reasonably regular attendance on the part of the Grievor, that it had not received what it was entitled to in the way of attendance, and that, on all the evidence, it was justified in its conclusion that there was no reasonable prognosis of the Grievor maintaining an acceptable level of regular attendance in the future. Based upon these conclusir it was the position of the Employer that it was justified in termin-' ating the Grievor's employment based on his record of innocent absenteeism, accompanied, as it was, by a poor prognosis for improve- ment. (See Exhibit 4, being the letter of dismissal received by the Grievor, dated March 2, 1984, written by T. H.~ Watson, the then Superintendent, of the Waterloo Detention Centre.) ,~, ‘i 2 In addition to the above agreement, there was filed with the Board, at the commencement of the hearing on August 3, 1984, a document containing certain agreed to facts, which are as follows: "Facts 1. There was a history of absences exceeding institutiona and Ministry averages. 2. The grievor's absenteeism was wholly innocent - there are no questions of abuse of sick leave. 3. There were warnings and the grievor was put on notice that he must bring med.ical certificates for all absent 4. Management was aware that the grievor had marital and. financial problems." The Grievance Settlement Board has accepted much of the arbitral jurisprudence relating to innocent or blameless absenteeism, . it has been developed in the private sector. This fact was noted in the unreported case of OPSEU(Richardson)and the Crown in the riaht of Ontario (Ministry of Correctional Services), 517/81, being a de- cision, of a panel of this Board, chaired by Professor P. G. Barton. In summarizing these decisions, Professor Barton stated at pp.9-11: "The "arbitral jurisprudence" if I may call hit _ that concerning innocent or blameless absenteeisn in the private sector has been accepted by this Board in such cases as Steuart 27/76, lmple 12/76, Moss 62/76, and others. Such private sector cases as iie L'Socor<s XospitaI (Weatherill 1979) 24 LAC 2nd 172, 2s United Automobile Porkers and Massey-Ferguson Ltd. (P. Weiler) 20 LAC 370 C15691, and Re United Automobile Yorkers Loccl 458 ar.d Mcssey-Ferguson Industries Ltd. (Shime 1972) 24 LX 344, ,have been accepted by this Board. These cases and others establish the proposition that in certain serious situations excessive absenteeism may warrant te--inatiOn Of ' - the employment relationshi?. Such termination is on the basis that the employee is not able to satisfy his side of the bargain to come to work on a regular basis. It is quite clear that such dismissal is not discipline in the sense.of a dismissal for blameworthy conduct, rather it is primarily because the interestsof.the employer are substan- tially impaired by such absenteeism. Naturally each case must be decided of its own factsand absenteeism'with respect to an employee in.one type of industry may cause the employer less grief than absenteeism in another..Jor examale in Re Aliments Stehirer: Ltee. atid Union Days Employees to Commerce LooaZ 501 (iru m kin 198 1) 29 UC Qndl297;although the Grievor had been missing -between 2.5 and 50 Cays per year, there was a pool of employees available and the employer was not unduly prejudicedby such absence. - '~ i The cases make it clear that it is up to.nhe employer to justify discharge by satisfying two require- ments. In the first place it is necessary to show a record of absenteeism which is excessive. In the second place it is necessary to show that the prognosis is not good. 3 ,. i; 4 In some situations where the Employer fails on the second branch of the test, an Employee may be reinstated on a probationary basis. Where the absences are for reasons beyond the control of the Employee, as in this case, and where the Employer cannot show that the prognosis is black, the purIaose of the probationary reinstatement is 1 to see whether or not the situation will improve:'. .I There was some suggestion from counsel for the Union that the Grievor's attendance record was"not that bad"and that the Employer had failed to satisfy the first part of the test. After having examined the attendance record of the Grievor, I am satisfied that, on any reasonable interpretation, it must Abe concluded that the Grievor had not held up his end of the bargain concerning his obliq- ation to maintain reasonable regular attendance. The nature of the undertaking carried on by the Employer is such that it experienced considerable difficulty in maintaining staffing because of the Grievor's chronic absenteeism. I am satisfied from the evidence of Dr. D. J. Macdonald, the Director of the Community~Mental Health Clinic in Cambridge, Ontario, who testified on behalf of the Grievor, that the fundamental basis for the substantial majority of the Grievor's absences was his' chronic~alcoholism and not the obstensible reasons given by him for such absences. The Grievor suffered from a number of physical ailments, including stomach ulcers and hypertension and these, amonq other physical ailments and emotional problems,were cited by him as the reason for his absences. To the date of his discharge, and for some ~considerable time thereafter, the Grievor continued to v i 5 deny that he had a problem with alcohol and endeavored to explain his absences on the basis of his various physical ailments along with the anxiety and depression brought about as a result of his serious domestic and financial difficulties. From the evidence, I am satisfied that the Grievor's Supervisors and the Grievor's advisor, Mr. S. Armstrong, were either aware or had strong suspicions that the Grievor had a problem with alcohol. Mr. Armstrong testified that he perceived his responsibility to the Grievor as one requiring that he take, at face value, the position gut forward by the Grievor (that he did not have. an alcohol problem) even if Mr. Armstrong had strong suspicions.to the contrary. Although the Grievor's supervisors also had strong suspicions that the Grievor had an alcohol problem, what was clearly the fundamental problem for the Grievor (his problem with alcohol), was never directly addressed, as it ought to have been.. On a number of occasions, the Grievor's supervisors brought his poor attendance record to his attention and, in no uncertain terms, made it clear to him that it would have to be improved as, otherwise, he might be discharged. 'It was clear from the testimony of Dr. Macdonald, that!as long as the Grievor's a,lcohol problem remained unaddressed and untreated, his attendance problem would not be overcome. From the perspective of the Employer, the Grievor had beer. unable to maintain the level of attendance that it was entitled to expect. Furthermore, the situation had gone on for so long, that, in the absence of evidence to the contrary, it was entitled to treat the prognosis for satisfactory attendance as being so poor as to warrant its conclusion that the Grievor's attendance would not improve siGnif- icantly. In the absence of any other evidence I would regard this as a reasonable conclusion. 'i 6 The evidence was clear that,prior to the Grievor's discharge, and for a considerable period thereafter, he ‘did every- thing possible to avoid having to deal with his alcoholism, and he was unwilling to acknowledge that he had a problem with alcohol. His failure to cooperate with the Employer,so as to permit its representatives to receive information from the Grievor's then physician,undoubtedly had a part to play in the decision to dismiss him. From the Employer's point of view, there was ample evidence to disclose a very unacceptable attendance record and there was nothing before the Employer's representatives to indicate a favourable prognosis. There is some difference among arbitrators as to who bears the onus in establishing a poor prognosis for future attendance. It is unnecessary to rule on this point as I find that, on a balance of probabilities, there was evidence indicatin; a poor prognosis for future attendance at the time of the discharge. To the date of discharge it was the Grievor's position that he suffered from a variety of physical ailment; and~emotional problems. which resulted in his being 'absent from work,on numerousoccasions over a period of several years. These ailments and emotional problems continued to plague the Grievor and, after a considerable period of time, it was reasonable for the Employer to conclude that the situation was not likely to improve. 'Absent certain other considerations, that would end the matter. However, certain facts concerning the Grievor's prognosis for regular attendance emerged after the Grievor's discharge, which facts considerably altered the prognosis arrived at by the Employer when it decided to discharge the Grievor. Argument was presented :3 t:7is 9oard, on behalf of the Employer, urging us to refuse to consider the Grievor's post-grievance behavior, as it related to the prognosis for his future attendance. It is evident that an Employer must make its decision to discharge an employee for innocent absentee on evidence available to it at that time. It was urged upon us, on behalf of the Employer, that there is an unreal burden cast upon it if its actions, properly based on evidence available to it, and which evidence would be sufficient to enable it to discharge an employee for innocent absenteeism, could be overcome by evidence not reasonaS available to it at the time it acted or by evidence which did not, in fact, exist at the time it decided to act. In this case, given the hostile attitude of the Grievor to the endeavorson the part of the Employer to obtain additional medical evidence, and his contin- uing posture of denying his main problem, it cannot be said that the Employer reasonably had available to it information which conflicted with that already possessed by it relating to the Grievor's prognosis for future attendance. Whatever debate may still exist concerning the right of a board of arbitration to rely on post-discharge evidence in ascertaining the prognosis for future attendance,. the Grievance Settlement Board has established a precedent of permitting such. evidence to be used in deciding the issue of whether a grievor is likely to be able to establish an acceptable attendance record in the future. In the case of OLBEU (Mr. A. Saunders) and the Crown in Right of Ontario (Liauor Control Board of Ontario, 252/82, (Swan), it was stated, at p-5: "This Board's jurisprudence, developed in a long series of cases beginning with Re Cook and Ministrv of Labour, 115/78 (Swinton) has recognized the admissibility of post-discharge rehabilitation as proper evidence of the prognosis for future attendance at work and satisfactory performance.. The Cock a decision has been upheld by the Courts of this province as an appropriate exercise of this Board's jurisdiction, and the Cook decision has been followed in other cases, since . . . . " Mr. Swan notes, at p.5, that: "[T]hose cases establish that alcoholism is to be viewed as an illness rather than as culpable behavior in itself and, indeed, the effects of alcohol may be a mitigating factor in certain cases of otherwise culpable conduct: See Re Cook supra. These cases simulate alcohol cases to cases of innocent inability, such as through illness or disability, to.perform the functions of employment. The important factor is the prognosis~for future usefulness and efficiency of the employee." The seeming unfairness.of permitting a grievor to benefit from the delay in concluding the arbitration hearing is referred toby Mr. Swan at p.6'of the Saunders case: "While the grievor's case has gained considerable weight simply because of the delay which occurred because of his previous 'waiver' and the length of time involved in the intervention of the Ombudsman, that weight still goes to precisely the issue which is central to a determination of whether he should be reinstated: the likelihood o,f his future reliability as an employee. Because of that delay, the Grievor is able to make a case which is much . stronger for example than that advanced in Burns a decision in which the present Vice-Chairman participated, and possibily that presented in several of the other cases cited above. . ..* It is desirable that the jurisprudence of this Board be consistent, in the absence of cogent reasons for different rules applying to essentially similar circumstances. Even in the private sector, it has been noted that if a particular rule has prevailed fcr a long period of time, it is one which has come to be relied upon by the parties and ought only to be changed for very good reasons. 30 such reasons were presented to this Board to persuade it to depart 9 from the practice of permitting post-discharge evidenced to be adduced, and acted upon, in deciding the issue of prognosis for regular attendance and satisfactory service. The prognosis with respect to future attendance was provided by two medical witnesses called on behalf of the Grievor. As mentioned above, Dr. D. J. Macdonald testified on behalf Of the Grievor. He is a fellow of the Royal College of Physicians of Canada,with specialist .qualifications in psychiatry. He testified that the Grievor is an alcoholic. Dr. Macdonald was ~of the opinion that the Grievor has suffered no irreversible medical problems as a result of his alcoholism,but would inevitably do SO if he did not cease drinking. As a result of the Grievor's subsequent treatment and abstension from alcohol, Dr..Macdonald believes that the Grievor has forestalled the inevitable process of alcoholism. It was Dr. Macdonald's further, opinion that while alcohol was not the only cause of the Grievor's absences from work, it was the significant feature contributing to such absences. Dr. Macdonald indicated that he was prepared to see the Grievor on an on-going: basis in order to assist in his rehabilitation. It was Dr. Macdonald who informed the Grievor about the alcohol addiction treatment program at the Homewood Sanitorium in Guelph, Ontario, and the Grievor was referred to that institution for treatment. Dr. Macdonald indicated that the Grievor had taken the first major step in dealing with his alcohol.problem by admitting that he had a problem, and,on the basis of Dr. Macdonald's observations, the Grievor was well into the process of acceptance. Dr. Macdonald 10 was particularly impressed with the fact that the Grievor had participated in and completed major portions of,the Homewood program. The Grievor entered the Homewood program on February 25, 1985, and his participation in that program willbe dealt with later in this Award. Dr. Macdonald indicated that the Homewood Sanitorium is a private psychriatic facility located in Guelph, Ontario, and has a treatment speciality in alcohol addiction in one of its units. He stated that the percentage of alcoholics who voluntarily seek help is about 1% and that it represented a major step for the~Grievor to enter the Homewood program and that his sincerity was further manifested by his remaining with the program. Dr. Macdonald acknowledged that he was aware of the fact that the Grievor had left the program during its second part, on March 13, 1995,Cduring a health crisis affecting his step-father), but had subsequently returned to and successfully completed the progrer Dr. Macdonald indicated that he was satisfied that this was not a "cop-out of the program" by the Grievor and that the Grievor's returning to the program.,after his father's health crisis was over, indicated this to be the case. The Grievor is now in the third stage of the Homewood program, which Dr. Macdonald felt was an important step. Dr. Macdonald stated that he has noticed important changes in the Grievor since the latter's admission to the Homewood program and further stated that he found the Grievor to have become more relaxed and insightful about his condition. He also found the Grievor to be more reasonable, less anxious and less depressed. Dr. Macdonald felt that the Grievor's relapse was not that significant 11 and regarded it as part of the "healing process." His prognosis was that the Grievor's chances of being able to attend work on a regular basis and carry out his duties in a proper manner were reasonably good at this stage of his rehabilitation, and he felt that the Grievor had come quite some distance in dealing with'a very serious problem. Dr. Macdonald stated that he doubted that absenteeism would be a serious problem for the Grievor in the future. St was his opinion that the Grievor will be able to carry out his duties with a good attendance record and that the Grievor is now in better health and in more control of his life than he had been in the past and that he is now capable of being employed in his old job. Dr. Macdonald's evidence must be given considerable weight He testified that he has worked with alcoholics for many years and that, during his medical residency, spent four years as the senior resident at the Addiction Research Foundation in Toronto. Dr. Macdonald stated that he first saw the Grievor on September 27, 1984, and issued his medical report on October 31, 1984. Subsequent to October 31, 1984, he saw the Grievor on November 29, 1984 and May 8, 1985. As I have already indicated, the fact that the evidence of Dr. Macdonald relates to post-discharge events does not affect those facts being examined with a view to ascertaining their relevance to the issue of the Grievor's prognosis for future attendar. and satisfactory performance. I am also affected by the fact that Dr. Macdonald has been to the Waterloo Detention Centre and is familiar with it and the problems and pressures affecting the Centre' staff. 1 . 12 Dr. Macdonald was frank in acknowledging that his opinion, in the case of alcoholics,is a guarded one but that this was not intended to indicate that he was lacking in a positive feeling about the Grievor's chances and he explained that one must always be "guarded" in issuing a prognosis in the case of an alcoholic. I concluded that Dr..Macdonald was about as positive as he could be when dealing with an alcoholic and, given the.attitude of the Employer towards alcoholism, which will be dealt with in more detail,,subsequentl I would regard his prognosis for the Grievor's-maintaining an acceptabl level of attendance and for satisfactory performance in the future as a positive one. In fact, Dr. Macdonald indicated that he now feels more optimistic about the Grievor's prognosis than he did in his written prognosis made in Exhibit 3. A favourable prognosis with respect to the Griever's being able to maintain reasonable attendance and performance was also given by Dr. Arthur W. Prowse. ~Dr. Prowse,is certified as a psychiatrist and is on the active duty staff at the Homewood Sanitarium and is the staff psychiatrist responsible for admission, assessment and treatment of patients in the alcohol treatment program, Dr. Prowse supervises care and co-ordinates the treatment furnished by a multi-disciplinary team,involving nurses, social workers, occupational therapists, psychologists, recreational therapists and physiotherapists. Twenty patients are treated at a time in the alcoh: treatment program. Dr. Prowse saw the Grievor on the day of his admission (February 25, 19851, and prepared an admission assessment and psychiatric evaluation. He saw the Grievor daily, except on weekends when the duty psychiatrist had this responsibility. r .> " 13 The Grievor's progress was reviewed at regular meetings of the treatment team and the Grievor was seen by Dr. Prowse, on an individual basis. As was indicated above, the Grievor discharged himself from the Institution on March 13, 1985, when his step-father., who was ill, went through a crisis. The Grievor was re-admitted to the program on April 19, 1985, after a new psychiatric assessment was conducted. The Grievor then completed the full hospital in- patient portion of the program and was, in the normal course of events, discharged on May 7, 1985. Although the Grievor discharged himself from the Institution on March 13, 1985, he did so for compassionate reasons and, after a new assessment was completed, prior to his re-admission on April 10, 1985, it was concluded that the Grievor should be permitted back into the program so that he might complete it. It was Dr. Prowse's evidence that the Grievor's departure was not an unusal event and that other patients had done so and were permitted to return in similar circumstances. Dr. Prowse noted that a patient is not permitted~to check-out and come back into the program at will. The program is a three week program,conducted five days a week with weekends off. It is composed of individual and group sessions devoted to education, treatment and life-style planning. There are also sessions conducted with family members. There is an optional component which enables the patient to participate in Alcoholics Anonymous, physiotherapy and recreational programs. ‘8 14 The program at Homewood is divided into three phases. The first pha;e relates to the admission of the patient to the hospital and, where necessary,detoxification. Detoxification was not necessary in the c&e of the Grievor. The second phase of the program is an in-patient program, as above described. The third phase is an out-patient portion,with anoptional follow-up. This part is~not covered by OHIP and the follow-up costs the patient $400.00 per year. The patients in the program are encouraged to go on alcohol aversion therapy. In the case of the Grievor, the drug antibuse was prescribed. Antibuse blocks the metabolism of alcohol in the liver and creates most unpleasant side affects, should the patient consume alcohol while on the program. As part of the overall program,the Grievor and his wife received counselling from a social worker in the unit and, in addition, there were individual counselling sessions conducted by Dr. Prowse. It was Dr. Prowse's opinion that the Grievor's prognosis was improved as a result of his wife's involvement in the treatment program and by the putting into place of an appropriate follow-up program. Of considerable significance, according to Dr. Prowse, was the fact that.the Grievor went on an antibuse program after his first admission. In hospital, the Grievor was given antibuse by a staff nurse and, on an out-patient basis, he took it on his own, except for a brief period of two days between his admissions. Although the Grievor acknowledged that he had had a few drinks between the two admissions,as a result of the stress related t0 his step-father's illness and the financial difficulties thathe W+ ir.,Dr. Prowse did not appear to be upset by this relapse. Dr. Prowse stated that a relapse is not uncommon among people with~alcohol problems, however he felt that a patient who has had a relapse coulh go on to a good prognosis. In Dr. Prowse's view, the Grievor's overall progress under treatment satisfied him that he had a reasonably good chance to remain alcohol free. In reviewing the Grievor's progress through'the program, Dr. Prowse stated that when the Grievor was re-admitted into the program he was required to begin the program over again. The Doctor testified that when the Grievor was first presented he had a fairly advanced problem, with a strong element of denial, which Dr.~ Prowse found compatible with this type of presentation. Dr. Prowse diagnosed the Grievor to'be an episodic alcohol abuser, usually confining his drinking to days-off or evenings. Dr. Prowse had certain reserv- ations about the likely success of the.Grievor's treatment at the time of the first admission. This was because of the strong element of denial, and because it was his opinion that the Grievor was in the program mainly because he had been advised to do so by his lawyer and because of this arbitration. His opinion changed as the Grievor continued in the program. Dr. Prowse stressed the importance of an alcoholic accepting and discussing his problem and developing motivation to deal with it. Dr. Prowse was impressed by the change in the Grievor during his time in the program and noted that,in individual sessions,the Grievor became more open and less subject to deny his condition. The Grievor responded well to the structure of the program land, on re-admission to the program, continue to show less denial and more highly developed motivation. Dr. Prowse felt that the frankness of the Grievor in admitting that he had con- sumed alcohol between his two admissions was a good sign, as man) 16 patients lie in those circumstances. Since the Grievor completed the two .stages in the hospital's.program, the reports received by Dr. Prowsc are favorable and he views the Grievor as being genuinely desirous of dealing with his alcohol problem in an open and constructive fashion. The Doctor is, nevertheless, not sanguine about the Grievor's condition and stated that he felt that he requires an on-going follow-up with "considerable teeth." He also felt that the Grievor should attend the phase three weekly group sessions as well as a local Alcoholic Anonymous group and obtain an Alcoholic Anonymous sponsor. He also felt that the Grievor should be on an antibuse treatment program and that it should be administered by someone at work or at a medical clinic. He also felt that the Grievor should continue to follow-up histreatment with sessions with Dr. Macdonald. Dr. Prowse found it significant that the Grievor focused on his alcohol problems at a time when he indicated that.he considered dropping this arbitration case. This demonstrated to Dr. Prowse that the Grievor was genuine in his endeavor to deal with his alcohol problem. The doctor also stated that the Grievor's ulcer condition appeared to be under control when he was in the hospital and felt that the Grievor could control his alcohol problem if he maintained his follow-up plans and concluded that the prognosis for the Grievor not drinking and being able to maintain regular attendance and satisfactory performance was favourable,as long as the Grievor main- tained his follow-up plans. Dr. Prowse emphasized that it was essential, in the case of the Grievor, that he regularly use ,. ‘. 17 antibuse for at least two years. It was Dr. Prowse's view that a patient, such as the Grievor, who remained on antibuse, would not likely again consume alcohol. In cross-examination, Dr. Prowse was asked about the Grievor's suitability for continued employment in his previous job, given the stresses of that job and the Grievor's character and personality. He replied that he felt that the Grievor could perform the job well if he abstained from alcohol, continued on pntibuse Andy the follow-up treatment above described. It was his .opinion that the Grievor was not ill-suited to the job as a prison guard and~that he would not likely "fall off the wagon again easily." The Employer had recognized that alcohol abuse is a treatable illness and, at all material times, had in place, as part of its Policy Statement in the. Conditions of Employment, as found ,in the Ontario Manual of Administration (Exhibit 291, the "Government. Program on Alcohol and Drug Abuse by Employees." The Grievor was never placed in this program, however, the program indicates the intention of the Employer to deal with alcohol abuse in an enlightened and humane fashion. It was the position, taken on behalf of the Grievor, that he receive payment for time lost and receive all benefits from the time of his discharge. One of the grounds in support of this positic: was the alleged failure of the Employer to adhere to its alcohol abus: program. The other basis for the argument was thatthe Grievor could not be discharged for the reasons given as long as he was entitled, to be on sick leave pursuant to the provisions of Article 51.1 of the collective agreement. '<' I.! 18 With respect to the first argument, Counsel for the 'Employer argued that the alcohol abuse program is not part of the collective agreement and failure on the part of the Employer to adhere to its requirements is not something that the Grievor can rely on in these proceedings. The Divisional Court, in the case of Re The Gueen and the Right of Ontario and Ontario Public Service.Emplovees' Union et al. (19841, 45 0.~. (2d) ~361, observed at,pp.365-6, that an employer under the Crown Employees Collective Bargaining Act may issue a manual which contains an indication as to how it - will exercise its right to manage. Having done so, and having indic- ated it would exercise its right in a manner equitable to both side,s, it is required to a0 so. The Court held,(p.365) that the employer cannot ignore an undertaking contained in such manual. It did not matter, in the latter case,that the management manual was not part of the collective agreement. The Divisional Court stated at p.366: "In the case at Bar, exercising its rights to manage, management promulgated the manual we have cited and in so doing indicated that these rights would be exercised in a certain way, equitable to both sides." There was no indication, in this case, that management had not dealt with employees with suspected alcohol abuse problems otherwise than in accordance with Exhibit 29. Under the provisions of the program.,it, is up to'the employee's superv'isor to identify"unsatisfactc job performance[whichlmay be due to abuse of alcohol . ..I( (see p.4 of Exhibit 29). I am satisfied that the Grievor's supervisor recognized that his attendance problem might be related to an alcohol abuse problem. Robert H. Nash, who testified on behalf of the Employer, is retired from the Ministry and prior to his retirement was the Superintendent of the Waterloo Detention Centre.. It wasp clear from ??r 13 'I Nash's evidence that he had a strong suspicion that the Grievor had an alcohol problem, however,Mr. Nash never accepted his fullresponsibilit: under the alcohol abuse program. The Policy Statement in Exhibit 29 requires that supervisors be trained to recognize the effects of alcohol on job performance and "to be cognizant of this policy so as to be able to recommend employees for assessment and treatment in accordance with [the] policy . ..". Upon the recommendation, the employing Ministry "must initiate a referral to the Employee Health Services Branch for a health examination where there is unsatisfactory job performance and there is reason to believe the abuse of alcohol... is a contributing~cause . ..". "Employees who cooperate with the recommendation of the employer - initiated referral" are to be "given reasonable opportunity to improve their job performance . ..". Although there was some attempt to have the Grievor accept a voluntary reference for assistance, without his alcohol problem being directly referred to, the program envisaged under Exhibit 29 was never followed. That is, as is required under the action provision of Exhibit 29, the Grievor's supervisor did not identify "unsatisfactory job performance which [mightlbe due to abuse of alcohol . ..". The Deputy Minister designee did not prepare "a referral letter to the employee outlining: the unsatisfactory job performance with supporting observations and documentation: what is expected of the employee ta improve his/her job performance to a satisfactory level: the consequences of failing to approve job performance to a satisfactory level: that the employee is being referred under the terms of the government program on alcohol . . . abuse by employees: and that the referral is not a disciplinary action, but an offer to help." I need not go through the balance cf the action requirement, which is intended to lead to treatment and monitoring of the treatment. ‘G i,’ 20 Similarly, Brian Blackie, a shift supervisor at the Waterloo Detention Centre, testified that he had a suspicion that the Grievor had an alcohol problem but did nothing based on his suspicion. It was the evidence of Tom Watson, the Superintendent of the Waterloo Detention Centre,from January 1, 1984, that a meeting was held with the Grievor on December 29, 1983. The meeting was called with the intention of dismissing the Grievor, a decision that Mr. Watson had previously arrived at. Mr. Watson stated that the meeting took at least two hours and that he went over the entire attendance record of the Grievor which he considered to be "atrociou:." He stated that he went over' the .Grievor's attendance record year by year and c,ompared it,with the institutionalaverage and the Ministry average of between nine and 'ten days per employee per. year. He stated that he told the Grievor that he was “f&-up’*~with ,his attendance record and of what he perceived it to be doing to the morale of the staff in the institution. He then asked the Grievor, "Why shouldn't I dismiss you?". The Grievor then attributed his attendance problem to marital and financial difficulties. Mr. Watson said that he asked the Grievor how he could justify maintainins the Grievor's employment and stated that there appeared to be nothing in the Grievor's past record, which included a large number of meeting and warnings, that had helped the Grievor to improve his attendance record. Mr. Watson indicated that he was frustrated because he did not know what the underlying cause of the Grievor's absences was. AS Brian Blackie was present at this meeting, I am satisfied that Mr. Watson was aware of the strong suspicion within the Institution that the Grievor had an alcohol problem. ‘. 21 As I have already indicated, the Grievor was, at that time, in a state where he did not admit to himself that he was an alcoholic with a serious problem. I am satisfied that the only way anything might have been done for him would be through resort to the provisions of the alcohol program (Exhibit 29). It was up to super- vision tq set the program in motion. Although it was done quite innocently, supervision played into the Grievor's state of denial, and the real problem was never faced. As well, Mr. Armstrong, the representative of the Grievor, also innocently, enabled the Grievor to maintain his stance of denial. As noted above, Mr. Armstrong conceived his role to be entirely "supportive" of the Grievor's stated position. Although Mr. Armstrong is supposed to have ."tried to convince Mr. Rupert to go to employee counselling," the suggestion was to be pursued on a voluntary basis and not under the program set out in Exhibit 29. It was on the basis that some form of counselling was, to be pursued by the Grievor that the decision to dismiss the Grievor was forestalled On'December 29. As Mr. Watson put it, he had, at the December 29 meeting,provided the Grievor with an additional opportunity to address his problem "and create the' proper attitude towards his attendance record." Unfortunately, the Grievor's problem was alcohol. I find Mr. Watson to have had a strong suspicion that this was the case. However, by the action then taken,the real problem was ignored. It is evident that.the 'problem could only have been faced directly by resort to the pro- .cedures set out under Exhibit 29. The matter then proceeded to its inevitable conclusion. Mr. Watson stated that he had a further meeting with the Grievor in iaza r'ebruary of 1984, when he requested that medical certificates or Watson decided to dismiss the Grievor on March 2, 1984 and was motivated to make this decision after an earlier request by the Grievor to change the recording of a sick day taken by him to a vacation day credit, in order to improve his attendance record. Mr. Watson's view, with which I concur, was that "a sick day was a sick day and a vacation day was a vacation day." Mr. Watson was fixated on the continued poor attendance record, while ignoring evidence of its likely major cause, and he communicated with a~ KS. Greenham who was then counselling the Grievor. Mr. Watson wished to know what changes might be taking place that would affect the Griever's attendance record. He 'was unable to get in touch with Ms. Greenham and in the meantime the Grievor's attendance record continued to be very poor and the ultimate communication with Ms. Greenham was ~rather inconclusive. Mr. Watson was concerned because the Grievor had been off for most of February 1984,and he asked Ms. Greenham if she knew what the Grievor's problem was but Ms. Greenham would say nothing, which Mr. Watson. attributed to the confidential nature of the relation- ship between her and the Grievor. Mr. Watson also indicated that by tl end of February he was totally "fed-up" after the promises and commit- ments made by the Grievor to improve his attendance record had come to naught. He felt that he had no other course of action but to dismiss the Grievor as "no matter how much was done for (the Grievor] no impovc ment was forthcoming." As I previously noted, none of the persons concerned with the.Grievor's problem pursued the course that ought to have been taken: a referral under Exhibit 29. ‘. .z 22 furnished with respect to future absences. The meeting was a chance one, when the Grievor.brought in a medical certificate to the secretary who is located near Mr. Watson's office. Mr. .z 23 Although it was done innocently, supervision was remiss in carrying out its responsibility under Exhibit 29. However, on the totality of the evidence, and especially relying on the evidence of Doctors Prowse and Macdonald, I cannot conclude that the Grievor would have accepted the referral provided for under Exhibit 29. In fact, even after he was discharged and even after the commencement of the arbitration, the Grievor did nothing meaningful to change the situation. It was only in February of 1985 that a truly positive step was taken by him which, as it turned out, led to the reasonably good prognosis as tom his ability to carry out his responsibilities and maintain a satisfactory standard of service. . In another case, the Grievor might have been entitled to payment from the date of his discharge for lost wages and benefits, because of the failure of the representatives of the Ministry to adhere to the government program on alcohol abuse by employees. Having set it into place and made it part of the conditions of employment included in the Ontario Manual of Administration, an "obligation [had] been assumed by managementin the very instrument used in carrying out its duty to manage." See OPSEU case supra,. at p.366. Where, however, as in this case, the evidence is all on the side of the Grievor continuing to deny the reality of his alcohol problem, I do not feel that it warrants the order for payment of salary and benefits from the date of discharge, as reguested on behalf of the Grievor, even if such an award were open to me. It was fortuitous that the Grievor was able to submit evidence of a good prognosis. But for the protracted hearing, and the practice of this Board to permit post-discharge evidence relatLn9 to prognosis for regular attendance and satisfactory service, the Griever would have failed in his attempt to regain his position. -: ; ‘. 24 While alcohol abuse is treated by the Government of~ontario as a treatable illness, the medical evidence was to the effect that it is, nevertheless, *a disease of choice." That is, according to the Doctors,the alcoholic employee decides to drink, to continue to drink and to become an alcoholic. At the same time, the employee is responsible for making the decision to stop drinking and to control his or her problem with alcohol. While the Employer was, albeit innocently, remiss in its obligations under the alcohol abuse program, the Grievor cannot be seen to be blameless,in the limited sense that I have described. While it is permissible to allow the Grievor to adduce post-discharge evidence as to prognosis for regular attendance and satisfactory performance, to permit him to succeed on P claim for payment of lost wages and benefits during the period that he continued to maintain.a position that was based on the denial of his alcohol problem is;on the evidence, unwarranted. The responsibilities under the government program on alcohol abuse by employees are not one sided. The employee, "is responsible for: using voluntarily all available counselling and treatment facilities: . . . making every effort, including use of the available diagnostic and treatment facilities to return his/her job performance to a satisfactory level." While the Employer failed in part of its responsibility under the~program, so did the Employee, and this cannot be'overlooked in deciding whether the Grievor ought to be entitled to payment of wages and benefits from the date of discharge. A further argument was made on behalf of the Griever, that he could not be discharged for innocent absenteeism as long as 'he was covered by an existing sick ,leave plan. Counsel for the Grie:. 1 relied on Article 51.1 of the collective agreement, which is as follc~ I I .i ’ * 25 “Effective the 1st day of April, 1978, an employee who is unable to attend to his duties due to sickness or injury is entitled to leave - - of absence with pay as follows: (i) With regular salary for the first six (6) working days of absence. (ii) With seventy-five (75) percent of regular salary ,for an additional one hundred and twenty-four (124) working days of absence in each calendar year,” Counsel for the Griever relied on the case of Re DeHavilland Aircraft of Canada Ltd. and United Automobile Workers, Local 112 1983, 9 L.A.C. (3d) 271 Rayner, where Professor Rayner stated at p.275 ” The union ties the position that an employee who is receiving either sicknrss and accident benefits or estended disability benefits undrr the terms of the collective agreement. canno be terminated :br innocent absenteeism. The employer naturally disputes this suggestion. ” Further, at pp.276-278, of the DeHavilland case, Professor Rayner stated: ” After considering the matter with some care, particular!?. in light of the ramifications of such a conclusion. I am of the opmlon that the union’s position in this case should be accepted. I reach his conclusion for several reasons., First. I am not persuaded that the conclusion of Pmfessor Schiff in the Barber-Ellis case is correct. There is simply lirtle‘ or no analysis of the problem LO support the conclusion that he reached. On a more narrow techniral ground. it could be suggested that the decision in Barber-Ellis :.- distinguishable from the present case as in that cass the benefiu were protided by an outside insurer and the obligations of the employer appeared to be simply LO provide insurance coverage. In the present case, the obligations of the employer are LO provide the benefits. This conclusion was reached by Pmfessor Go&y in an earlier award between the parties (grievance of Robert Baiker and policy grieruxe) issued in March of this year. As I have already stated this is simply a technical difference and may. in fact, be a difference without substance. Secondly, there are substantial reasons to differ from the conclusion reached in Barbm-EUis. Professor SamAs in his award referred to above alluded to one of them. He pointed out that when the panics collectively barpain Ihe sickness and accident insurance and group extended disability insurance benefits, the employees gave up other monetaq benefits in order to have the programme. It appears LO me, as it did so to Professor Samuels. that to permit the employer to terminate for innocent absenteeism during the currency of the protection afforded by the pro-me uniiarerall~ permits the employer to destroy an interest vested in the employee under the terms of the collective’ ag’reement. This reasoning assumes. of course, that rhe employee qualified for either or both the sickness and accident benefits and the extended disabiiity benefits. In the present case, the griever’s absences were covered by one or the other of the programmes. A third reason for reaching this conclusion is the nature of the right of the employer to discharge generally for innocent absen- teeism. Earlier anards indicate that this righ: Rows from a contract. In other words. the employer, under the terms of an employment contract created by the collective agreement, is entitled to have the employee perform one of his basic contractual obligations, i.e.. to attend at,work. If this right of the employer flows from the contract, it would follow that that right can be varied or fettered by the contract itself. It can hardly .be argued that the contract has been frustrated by the inability of the employee to attend at work for by negotiating sickness and disability benehts. the parties obviously contemplated the very situation that would form the baris of the application of the doctrine of frustration. If that is the case, the doctrine has no application. Nor can it be argued that the benefits only are payable to persons who are employees of the company. Such an argument is somewhat circular in that it begs the major issue which is whether the company can terminate employment during the currency of the coverage. It seems wrong in principle that the company could uniiaterahy end its obligation under the collective agreement with respect to coverage’ by terminating the employee. An example, perhaps more striking than the present case, would iIlustm.te this conclusion. If one imagines that a long-term employee suffered a severe illness or accident outside the work place which totally disabled that person for lie. the company’s position would permit the employer to terminate. If the disability benefits attached to the employment status, that employee would lose those benefits. However. the benefit provision of the agreement between the pa~ies contemplates just the opposite result. it could perhaps be suggested that the company could terminate the employment of the employee but continue to be obligated to pay benefits under the benefit sections of the collective agreement, This argumex assumes, of course. that the benefit ‘payments are not tied to enployment status. However. if thai be the case, it is dificult to see how the company is in a worse position by permitting the individual :o retain his employment status during the currenw of the benefits under the sickness and accident and/or extended disability plans. In the present case, the sickness and accident plan provides coverage for 52 weeks. The e.xtended disability plan provides coverage for a period of time equal to the employee’s peam of seniority, less then 52 weeks covered by the sickness and accident plan. Under such an anangement, it is obvious that the employee does not continue IO accrue seniority uhile receiving extended disability benefits. Otherxise there would be no limit on the period of coverage established by the extended disability benefit plan. Thu: if the employee was. for some reason or other, no longer toiaiiy disabled. rhar employee would be enritled to return LO work to a po.-ition permitted by his wniority. 26 27 During the courSe of argument by union counsel. I asked him if there was any time limitation with respect to the applicability of his argument. He replied that there was not. hly concern in this area u’a. of course, that the empltiyer could be perpetually responsible for maintaining an employee who no longer could work for it. In putting this question to union counsel I contemplated the follo\x-ing situation. An employee wa- absent from work for an tslended period of rimr and covered either by :he sickness and accident plan or rhe txiended disahi!ity plan. If the znion’s argument is correct. the emplpyee co;id not be termina:ed for innocen_t +enreeism during this time period. The employee then r&&s to work and continues to accrw seniotity. The employee then has a relapse and again goes on or‘< or both of the plans. The union argument again would be that the employee could not be terminated while coverage under these plans existed. If one assumes that such a situation could repeat itself over and over again, the employer would be required to maintain the employee on its employment rolls for rhat entire period. This possibility wzs one of the reasons that I hesitated in accepting the union’s argument. However, I have accepted it and it may be that that IS a possibility that the employer must Ii\-e with. That possibility flows from the contractual obligations that the parries have agi=eed to. Practicallp speaking, however, there may be another answer to that possibility. In my view, the employer when faced with a statement by the employee that he or she is no longer sick or disabled, may require medical evidence to tistablish that the employee can retii to work. If that evidence is not forthcoming, the employee would ‘remain on one or the other of the plans. Event.+, after the passage of sufficient time. the cowage of the plan wll end. At that point if the employee is no longer able to return to work, the emploger could then invoke the concept of discharge for innocent absenteeism. Accordingly, for all of the reasons set out above, I conclude tha: the employer in the present case cannot discharge for innocent absenteeism while the employee is cove+ by the siclmess and accident and/or ejitended disability plans. !* In this case, Counsel for the Union relied upon the pro- visions Of s.51 as entitling the Griever to be absent as a result of sickness for one hundred and thirty days a year without being subject to discharge for innocent absenteeism. The sickness and accident policy in the DeHavilland case does not represent the same basis for an employee being absent from work as is provided by Article 51. In the case of OPSEU (William Couling and the Crown in the Right of Ontario (Ministry of Health), (573/83), a case decided by Vice-Chairman E. B. Jolliffe, Q.C., it was observed that the existence of Article Si and the fact that an employee might 28 qualify for leave under that Article, isnot inconsistent with dismissal for innocent absenteeism. At pp.8-9 of the Coulinq case, it is stated: "By this late date in the history of labour- management relations, it should be clear on all sides that innocent absenteeism,.whether by reason of disease or injury, does not constitute just cause of dismissal, nor does it justify threats of dismissal. There may be extreme cases of prolonged absence and incapacity makinq it impossible for the employment relationship to continue. This case, however, never came near that criterion. It fell within the conditions expressly contemplated by Article 51 . . . of the collective agreement." In the Coulinq case, the arbitrator found, on the facts of that case, that he could not conclude that it would be impossible for the employment relationship to continue because of prolonged absence and incapacity. In another case decided by Mr. Jolliffe, OPSEU (Jeanette Jones) and the Crown in the Right of Ontario (Ministry of Correction: Services),573/82, the arbitrator found that the Grievor was entitled to rely on the provisions of Article 51.1 and, stated at p.27, "Our second ground for upholding the grievance is obvious: the collective agreement expressly contemplates that 'innocent absenteeism' calls for, compensation rather than the extreme penalty of dismissal." In that case,%. Jolliffe found that the grievor's absenteeism record was not sufficient to lead to a conclusion that she was incapable of maintaining regular attendance. (See pp.25-27.) In the Jones case, Article 51.1 was found to apply because the arbitrator was satisfied that the absences of the grievor were not excessive. In this case, as at the date of discharge, it had been established that the Grievor's absences were excessive and, on the then available I .c . ; -t z - c E , _ _ ._ __. - -; +- c 0 u I-' reasonably be concluded that he would be unable I 2 J k 29 to maintain reasonable attendance in the future. But for the fortuito;l circumstance that the first day of hearing, in this case, took place or Auqust 3, 1984, and the last hearinq took place on the 22nd day oft ?laLr, 1985, the Grievor would have been unable to demonstrate a good 'Y prognosis for regular attendance. Such a prognosis could not then have been made,, given the fact that the Griever did not enter the Homewood program until February of 1985, and his progress in that program could not be reasonably evaluated until April of 1985. Accordingly, the Jones case cannot assist the Grievor. Although I would allow the grievance, subject to the conditions to be set forth hereinafter, I agree with the statement of Mr. Swan, made at pp.b-7 of the Saunders case: “While the Crievor’s case has gained considerable weight simply &cause of the delay which occurred because of his previous Waiver” and -de length of time involved in the intervention of the Ombudsman, that i weight still goes to precisely the .issue which is central to a determination of whether he, should be reinstated: the likelihood of his future reliabi!ity as an employee. Because of that delay, the Crievor is able to make a case that is much stronger, for example, than that advanced in Bums, a decision in which the present Vice Chairman participated, and possibly than that presented in several of the other cases cited above. Were this the occasion of the first discharge of the Grievor, his case would be irresistible. lhforrunately, however, it is not. ii The other aspect of the dilemma which this case presents to the Soa& is thar ati of the jurisprudence mentioned above depends upon conditional reinstatement, and in every case one conditicn has br-n that the Griever demonstrate his abiiity to continue as an effective empioyee Lyy working for a period, of variable duration from,case to case, free of my alcohol-related employment offenses, including alcohol-related E I ! ‘l absenteeism, The .Board has always intended those orders to be final, in t.be sense that they have been an offer of a last chance to an employ= ;o demonstrate a continued usefulness to the Employer. E;nployers do not have any obligation to function as social service agencies; they are entitled to expect employes to be productive and reliable, and ought not KO have to carq! e_mpioyees who cannot meet that standard of performance. ;‘lor do we think that any different considerations ought to apply to an Employer merely because it is a government agency or, in the CaSe of Lye present Employer, has such a particular connection with the sale and consumption of alcohol. The Board’s jurisprudence has been based upon the arbitral opinions related to innocent absenteeism, and a characterization of alcohol a an illness rather than as culpable conduct. As in the more purely medical cases oft innocent absenteeism, therefore, the central concern is the prognosis for the employee. if, however, these decisions are -designed KO be “one I& chance”, it is vital to the institufionaf concerns being advanced by the Board that a last chance never be repeated; to do so runs the risk of ‘bringing the entire jurisprudence into disreplu-re, : \i --’ In addition, while we do not wish to engage in the all-too-common habit of arbitrators of asserting some. specialis: knowledge of the disease of alcoholism, what refiable common knowledge about the disease is available indicates that the rehabilitation of alcoholics would not be improved, and indeed might be defeated by the knowledge that beyond the ‘present last chance rhere may be yer another lass chance to be rehabilitated; the conventional wisdom is that it is only when faced with the choice between rehabilitation and a hopeless future that most alcoholics find the strength 10 recove.. r* see Re British Columbia Telephone Company and Telecommunication Workers’ Union (197S), 19 L.&C. (2d) 9% 30 (Gall). ” ,, ,s, \ :L 31 I also agree with the statements of Professor X. Swinton, made in the case of B. Foy and the Crown in the Right of Ontario (Ministry of Community and Social Services), 99/?9 at p.17: "It would be useless to reinstate the qrievor if he were not prepared to take treatment, for the employer has a right to expect adequate job performance from him. The whole purpose of the government's mandatory program is to try to save worthwhile employees." Accordingly I would make the following order: 1. The grievance is allowed and the Grievor is forthwith reinstated to his previous position with the Ministry of Correctional Services in the Waterloo Detention.Centre. Such reinstatement is without payment of lost wages and benefits, however,' the Grievor will continue to accrue seniority from the date of discharge. 2 . .The Griever is reinstated on the condition that he contin to undergo treatment for alcoholism in the third stage of the Homewood program. 3. The Grievor continue to see Dr. Macdonald until Dr. Macdonald deems this to be unnecessary. 4. That the Grievor maintain membership and requisite - attendance in an Alcoholics' Anonymous group for such period of time as Dr. Macdonald deems necessary. 5. That the Grievor refrain from consuming any alcohol and that he remain on an antibuse program for a period of two years and .for such additional period of time as may be determined by Dr. Macdonald. 6. That the person or persons to adminster antibuse to the Griever should not be the Grievor or his wife. Should the parties.be unable to agree on the way in which the antibuse program should be administered, we will retain jurisdicticn tc resolve their dispute. 32 7. Failure on the part of the Grievor to adhere to the above conditions will enable the Employer to discharge the Grievor. As agreed, the Board will retain jurisdiction to deal with problems arising out of the implementation of this Award. DATED AT London, Ontario this8th day of October, 1985 M. R. Gorsky vice-chairman S. 0. Kaufman ’ @dden&mattached? D. B. Middleton Member ADDENDUM While I concur with the reasons and decision of the majority to reinstate the Grievor and the terms of reinstatement, in view of all the circumstances I would have reinstated the Grievor with full benefits and wages from May 22, 1985, the last date upon which evidence was heard. It is unfortunate that the Grievor is deprived of his benefits and wages for the approximately four months subsequent to his having completed his case for reinstatement but before the decision of this Board was rendered and communicated to the parties. Dated at Toronto this 8th day of October, 1985. S. D. Kaufman Union Nominee