HomeMy WebLinkAbout1984-0491.Briscoe.85-02-14ONTARIO CROWN EMPLOYEES
GRIEVANCE
SETTLEMENT J-’ BOARD
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT.
Before
THE GRIEVANCE SETTLEMENT BOARD
Be'tween: OPSEU (Stewart Briscoe)
- and -
Grievor
The Crown in Right of Ontario
(Ministry of Transportation and
Communications)
Employer
Before: R. L. Verity Vice Chairman
L. D. Foreman Member
R. Cochrane Member
For the Grievor: E. Shilton Lennon
Counsel
Cavalluzzo, Hayes & Lennon
For the Employer: Michael Fleishman
Counsel
Crown Law Office
Ministry of the Attorney General
Hearing: November 9, 1984
1. ;’ ‘-‘3 -2-
DECISION
The Grievor, Stewart Briscoe, alleges that he was
discharged without just cause effective May 25, 1984. He seeks
reinstatement with full compensation for lost wages and benefits.
Harold Gilbert, Deputy Minister of Transportation and
Communications, terminated the Grievor's employment in a letter
dated May 14, 1984. The termination letter read, in part as
follows:
"I am satisfied that, outside wxkinq hours in the j
early morning hours of February 25, 1984, you operated
a Ministry-owned vehicle tiile heavily under the
influence of alcohol until intercepted and charqed
by the Ontario Provincial police. I am informad
thatyouware charqedbytheCmtarioProvincia1
Police and have been convicted of:
1) Impaired Driving - Section 234, Criminal
Cede of Canada:
2) Driving Rotor Vehicle with alcohol in the
blocd in excess of GO milligrams in 100
millilitres of blood - Section 236, Criminal
Ccdeof Canada:
3) Driving Motor Vehicle with open bottle of
liquor - Section 48(l) Liquor Licence Act
You stated at the hearing that you were aware of both
the instructions in the Han-k for Equipsent Operators
and the Ministry Circular No. 76-043 which repeated
the Ministry's long-standing total prohibition of the
operation of Ministry equilm'ent while under the influence
of alcohol: I cannot over--hasize the serious view
taken of your disregard of t&s Ministry's ~on+stimding
policy with respect to the operation of a Ministry
vehicle while under the influence of alcohol.
I must advise, therefore, that after due consideration
of all the factors including length of service, your
previous driving record, your awareness of Ministry policy,and rules with respect to the prohibition on
driving M.T.C. equipment while under the influence of
alcohol and the seriousness of the offence with respect
to the Ministry's policy and public obligation, I must
i R
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 of work will be May 25, 1984."
The facts are not in dispute. The Grievor, aqed 23
and unmarried,has approximately four years service with the
Ministry. His seniority dates back to June 16, 1981. At the
time of d.ischarge, the Grievor was employed as a Highway Equipment
Operator 2 in the Ministry's Sault Ste. Marie District (District 18).
The Grievor was assigned to the Marathon Patrol Yard and at the
time of the incident was posted to the satellite' patrol yard at
Kanitowadse. Essentially, the Grievor's job entailed working as a
"premium labourer" in the summertime, and as a night patrolman for
a minimum of four months in the winter. During the .winter months,
the Grievor was required to operate and maintain a variety of
Ministry vehicles and equipment known as Type "A" or "B" equipment
for the purpose of maintaining roads. In the summertime, as a
premium labourer, the Grievor was required to spend up to 40% of
his working time operating Type "A" equipment.
In February, 1984, the Grievor lived at the Ministry of
Natural Resources "bunk house" at i!ani,towad:-. The only other
regular inhabitant of .that bunk house was an older man. The
Grievor had permission to operate Ministry equipment in off-duty
hours for the purposes of travelling to andfrom the patrol yard,
restaurants and the bunk house at F:r: n ; t 3 :': a d ; e .
-4-
On the evening of February 24, 1984, the Grievor used
a regular Ministry f ton truck to travel to a restaurant in
Manitouage for dinner. The evidence is clear that he spent
the evening hours drinking beer at the local hotel. When the
beverage room closed after 1:00 a.m. on the morning of February
25, the Grievor obliged another patron of the beverage room by
driving him home. Unbeknownst to the Grievor, the passenger
.had taken an open bottle of beer into the Ministry vehicle. After
the Grievor had reached his destination (only several blocks from
the hotel) the Ontario Provincial Police apprehended the men and
discovered the open bottle of beer. The Grievor was subjected
to a spot breathalizer check and recorded a blood alcohol reading
of .llO. As a result of that reading, the Police charged the
Grievor as indicated above.
Later that morning, the Grievor promptly advised his
Supervi~sor of the incident. On April 19, 1984, the Grievor pleaded
guilty to the charges and was fined $350.00 for his misconduct.
In addition, his driver's licence was suspended for three months.
At the hearing, two witnesses were called upon to testify -
Gary Todd, who at all relevant times was the District Maintenance
Engineer, and the Griever.
- 5-
Mr. Todd testified that the Grievor was made aware
of the Ministry policy prohibiting the consumption of alcoholic
beverages and the operation of Ministry equipment when the
Grievorentered into Conditions of Employment on June 16, 1981.
Section 14 of the Conditions of Employment states:
"Because of the special responsibilities of the Ministry
of Transportation and Communications in the administration
of vehicle operator licensing and the need for employees
of thisMinistry to set a goodexample in the areaof safe
and prudent vehicle operation, any er@oyee in charge of or operating Ministry equipxnsntwill be subject tc instant
dismissal if there is any indication that he has been
consuming alcoholic beverages."
Mr. Todd introduced Ministry circular 76~043 entitled
"Employees Operating Ministry,Equipment and Employees Whose
Positions Require a Driver's or Chauffeur's Licence", which
contains virtually the same terminology as paragraph 14 of the
Conditions of Employment. However, Mr. Todd was unable to state
thatthe Grievor had acknowledged and read that circular.
Similarly, the Ministry's Handbook for Equipment
Operators prohibited the operation of Ministry equipment while
under the influence of alcohol.
On March 20, 1984, the District Engineer wrote a detailed
account of the incident to the Ministry's Personnel Services Branch
in Thunder Bay and in so doing, made the recommendation that the
Grievor'.s employment be terminated for cause based on contravention
of the Handbook for Equipment Operators and Circular 76-043.
- 6 -
Mr. Todd candi'dly admitted that no formal search was
conducted to determine w:hether there was alternate employment
available within the District that did not require an employee
to possess a driver's licence. He did state that he was aware
that intwo adjacent patrol yards, namely White River and Hornpayne,
no vacancies existed. In fairness, Mr. Todd stated that the
issue of lack of driving privileges was not a matter that had
influenced his recommendation to terminate the Grievor's employment.
At the time of the recommendation, the Grievor had not then lost
his driving privileges. Mr. Todd testified that the Grievor was
not permitted to operate vehicles from the time the charges were
laid on February 25, and that indeed the Ministry had employed the
Grievor subsequent to the laying of charges in the capacity of
a "manual worker".
The Grievor testified in a forthright manner that he was
embarrassed by his conduct, that he was well aware of the Ministry's
policy and that he would never repeat his mistake. Essentially he
attributed his conduct to personal problems involving a girlfriend
and a car; boredom on the job due to the fact that there was no
snow during the month of February; and to his isolation in!!anitZiiL?cs
with its lack of recreational facilities. He testified that he had
encountered no previous difficulties with the consumption of alcohol
and in his own words he "could take 'it or leave it".
j i . .
- 7 -
The central issue for determination is the appropriateness
of the penalty imposed. On behalf of the Employer, Mr. Fleishman
argued that in the circumstances the penalty of discharge was indeed
appropriate. He argued that the Griever had breached his employment
relationship in two significant .respects - (1) failure to follow
Ministry policy while operating Ministry eq*uipment and under the
influence of intoxicants and (2) the loss of his driver's licence
when a valid driver's licence was an essential ingredient of the
job. To support its position, the Employer relied upon two G.S.B.
Decisions - OPSEU (Randy Houle) and Ministry of Transportation and
Communications', 771/83 (Brent); and in particular pPSEU (Jacobson)
and Ministry of Transportation and Communications, 394j82 (Palmer).
The Union challenged the propriety of the lost licence
argument to justify discharge. Ms. Shilton Lennon argued that the
loss of licence formed no part of Gary Todd's recommendation to
terminate the Griever's employment. Similarly, that issue was not
referred to in the termination letter of Deputy Minister Harold
Gilbert. It was the Union's contention that the Grievor was
discharged for the sole reason of driving a Ministry vehicle after
having consumed alcohol. The thrust of the Union's case was that
the offence while serious in nature, did not justify discharge, and
that the circumstances. called for a substituted penalty. Cases
cited by the Union included Thompson and Ministry of Transportation
and Communications, 29/76 (Beatty); OPSEU (Durnford) and Ministry of
*3*
-a-
Transportation and Communications, 592/S'? (Gorsky); and
GPSEU (Crowley) and Ministry of Transportation and Communications,
176/83 and 177183 (Verity).
In this matter, the Ministry has a long standing
policy, known to this employee, which prohibits the operation
of~Ministry equipment while under the influence of alcohol. That
policy is both reasonable and understandable, bearing in mind
the fact that it is this Ministry that is the provincial licencing
authority, and this Ministry that is responsible for the safety of
the travelling public.
The Griever's conviction of alcohol related offences,
including impaired~ driving, is indeed a serious matter. Although
the Grievor's misconduct took place in off-duty hours, he was
driving a Ministry vehicle that was clearly identified as such.
Therefore, his offence is sufficiently work-related to conclude
that there was just cause for the imposition of discipline.~
Admittedly, the Deputy Minister's letter to'the Grievor
of May 14 made no specific reference to loss of driving privileges.
However, the letter did refer to the Grievor's conviction on the
three alcohol related charges. There can be no doubt that as of
May 14, the Ministry knew that the Grievor had his driving privileges
suspended for a three month period.
,
By way of disciplinary response, theEnployer made no
meaningful attempt to find alternate employment for the Grievor
which did not involve possession of a valid driver's licence.
The Employer did employ the Grievor as a manual labourer from
February 25 to May 25, 1984. Recognizing the fact that the Grievor
was convicted of then alcohol related charges in Court on April 19,
it is difficult to understand why the Employer delayed-in taking
disciplinary action until May 14 with termination of the Griever's
employment to take effect on May 25, 1984. Indeed, the time taken by the
employer from the point it became aware of the incident until it took action may
be interpreted as a reluctance to discharge the grievor, a reluctance which this
Board shares.
The Board agrees with Vice-Chairman Palmer's rationale
in GPSEU <(Jacobson) and Ministry of Transportation and Communications,
as expressed at page 9:
"mile it might be the case that had they (the employer)
gone further some job might have been found (for the
griemr) , it is to be noted, however, that the policy
adopted by them (the employer) is not one tiich
provides a guarantee of another job and there is
nothing in arbitral jurisprudence which requires the
employer to give employees in these circumstances
alternate employnent as a matter of right. Nhat has
to be lwked at is the reasonability of the efforts
taken by the qloyer....."
In the Jacobson decision, the Board found that the
Employer had taken all reasonable efforts and accordingly the
discharge was upheld. However, in that matter, Mr. Jacobson had
on two occasions been convicted of impaired driving, and after
the first conviction he had been demoted to a non-operating
position, then available. A further distinguishing feature is
that apparently Mr. Jacobson was suffering from alcoholism.
- 10 -
It is generally acknowledged that the circumstances
of each case are the governing factors to determine whether
discharge is justified.
Having considered all of the evidence in the instant
grievance, the Board is satisfied that the penalty of discharge-
is excessive and that.pursuant'to our authority under Section 19(3)
of the Crown Employees Collective Bargaining Act,,a substituted
penalty is appropriate.
On the evidence, the Grievor appears to have been a
satisfactory employee. The evidence establishes that the Griever
has no history of the use of alcohol while at work, and the incident
of February 25 can be characterized as an isolated incident. In
the circumstances, there was no damage to the Employer's property,
nor for that matter to the Employer's reputation. Similarly, there
was no accident involved and no personal injuries sustained arising
from the incident. The Board is 'satisfied that the Grievor was
genuinely remorseful and that it is unlikely that he would be
involved in a similar incident. It cannot be said that the
Griever's personal circumstances in any way justified his conduct;
however, they are factors worthy of consideration in substitution
of penalty.
Accordingly, the Board issued telegrams to the parties
following the hearing ordering.immediate reinstatement of the
Grievor to the position of a Highway Equipment Operator 2 in the
, - 11 -
Sault Ste. Marie District. The Board is of the opinion that a
lengthy suspension of some 5 f months is an appropriate penalty
in order to impress upon the Grievor that such conduct cannot be
tolerated.. Therefore, the Board awards that the Grievor shall
not be entitled to compensation upon reinstatement. There shall
be no loss of seniority or service related credits and benefits
as a result of the .suspension.
DATED at Brantford, Ontario, this 14th day Of Jant!trY,
A. D. 1985.
I
R. L. Verity, Q.C. - Vice-Chairman
R. Cochrane - Member