AH 464: LAPORTE, L

AWARD

This arbitration concerns the discharge of S&C Signal Maintainer L. Laporte for accumulation of demerits in excess of 60, following upon the assessment of 40 demerits for allegedly operating a company vehicle while under the influence of alcohol. The Company alleges that the grievor was impaired in the operation of a company vehicle on September 1, 1997, as a result of which the truck he was driving was totally destroyed. The Union submits that the grievor did not consume alcohol prior to the accident in question, and that no basis is established for the assessment of discipline against him.

The grievor, who is 37 years of age and has some ten years’ service with the Company, was working as an S&C Maintainer in Ramsey, Ontario at the time of the incident giving rise to his termination. A resident of Val Caron, Ontario, he was required to travel from his home to his work headquarters in Cartier at the conclusion of the Labour Day weekend. It appears that he arrived in Cartier at approximately 19:00 on Monday September 1, parked his personal vehicle and took charge of the company truck normally assigned to him. He then proceeded to drive the truck to the S&C bunkhouse at Ramsey, said to be some 100 miles from Cartier. While he was on route, at approximately 21:30, his truck skidded off the Ramsey Road, which is a gravel surface, at a location where it turns sharply following a downhill grade. The grievor relates that as he drove down the hill, prior to the left turning curve, his car began to drift on the washboard surface of the road. His attempts to regain control of the truck failed, and it was propelled across the left ditch and into the adjacent woods where it rolled a full revolution before coming to a stop approximately 110 feet from the roadway. Mr. Laporte was momentarily knocked unconscious and was apparently revived back to consciousness by the sound of his dog, which accompanied him in the cab of the truck. By his account he immediately evacuated the truck, taking certain possessions and his dog with him, as there was smoke in the cab. As the grievor made his way back to the road the truck burst into flames, and was totally destroyed as a result.

Mr. Laporte found himself alone, on a dark, gravel country road, clearly shaken up by his experience, and with a serious cut to the back of this head. According to his account, after he walked a short distance, an approaching vehicle stopped. The car belonged to a personal friend of Mr. Laporte, Mr. Theo Guindon. According to Mr. Laporte he asked his friend whether he had anything cold to drink, whereupon Mr. Guindon provided him with two cans of cold beer which he immediately consumed to calm his nerves. As he was speaking with Mr. Guindon, whose direction of travel was not towards Ramsey, other vehicles happened along the road and stopped to observe the burning truck. He then indicated to Mr. Guindon that he would proceed onwards to Ramsey by obtaining a ride in one of those vehicles, which he subsequently did. It appears from his account that some of the cars in question were driven by EB Eddy employees on their way to their own place of work in the direction of Ramsey, said to be some 15 to 30 minutes away by car. When Mr. Laporte arrived at the EB Eddy camp in Ramsey he requested security guard Raymond Castilloux to advise the Ontario Provincial Police of the accident, which the latter promptly did. It appears that Mr. Laporte next contacted Mr. Guy Farr, who is either a section foreman or a leading track maintainer employed by the Company at Ramsey. Mr. Farr contacted the grievor’s foreman, Mr. Lawrence Dillon, at the grievor’s request to notify him that he had been injured. It appears that shortly afterwards Mr. Dillon made arrangements for S&C Maintainer D.A. Lavallee to transport Mr. Laporte to the nearest hospital, located at Chapleau. It appears that as Mr. Lavallee was driving the grievor to Chapleau they encountered Mr. Dillon on the way to Chapleau near Sutton. After Mr. Dillon spoke briefly with Mr. Laporte he instructed Mr. Lavallee to inform supervisor Stan Bell of the events, which Mr. Lavallee did.

Upon arrival at the Chapleau General Hospital the grievor and his driver were met by Ontario Provincial Police Constable D. Moore. Shortly afterwards Mr. Bell arrived at the hospital, apparently while the grievor was being treated for his injuries. According to Mr. Bell’s statement, when he arrived at the hospital he spoke briefly with Constable Moore who had previously met with Mr. Laporte upon his arrival at the hospital. The constable indicated to Mr. Bell that he detected an odor of alcohol on Mr. Laporte. When Mr. Bell inquired whether a breathalyzer test would be performed, the police Officer indicated that he did not intend to do so given the amount of time elapsed since the accident, as it was then approaching 02:00 on Tuesday September 2, 1997. It would appear that Constable Moore also expressed a concern that the grievor had been evasive and inconsistent in his reply to him when he asked Mr. Laporte if he had consumed any alcohol. According to what Constable Moore told Mr. Bell, the grievor first indicated that he had not had anything to drink, but later stated that he had consumed a small amount of non-alcoholic beer on Monday morning while mowing his lawn, and finally admitted that he had consumed two beers after the accident. It appears that Mr. Bell then asked the constable if he would perform a breathalyzer test if Mr. Laporte agreed to the supervisor’s request to such a test, to which the constable replied in the affirmative.

Mr. Bell met with Mr. Laporte shortly after 02:30. The grievor then advised the supervisor that he had received a number of stitches to the back of his head, but was otherwise all right. Mr. Lavallee, Constable Moore, Mr. Bell and the grievor proceeded outside where Mr. Bell inquired of the grievor what had transpired. Mr. Laporte recounted the events as related above, and in response to Mr. Bell’s specific question about alcohol, indicated that he had had a couple of beers on the Monday morning while mowing his lawn, and two beers after the accident.

At the arbitration hearing Mr. Bell related that he saw no visible signs of impairment in Mr. Laporte. Based on what he observed, however, he asked Mr. Laporte whether he would undergo a breathalyzer test. That request was obviously unsettling to the grievor. Mr. Bell’s own memorandum describing the exchange that followed reads as follows:

I asked Mr. Laporte whether he would submit to a breathalyzer and he declined. Mr. Laporte became quite agitated at this point and started using heavy profanity indicating “if this was the way this was going to go”, he wanted a Safety & Health representative and a lawyer. He again indicated that the OPP were accusing him of drinking and went throu (sic) how he spilled beer on his clothes and the fact that he was driving back to Ramsey from Cartier and wouldn’t undertake a wardrobe change to drive back to work.

While Mr. Bell relates that he endeavoured to explain to the grievor that a breathalyzer test would be exculpatory, and the refusal to take it could put him at risk of adverse inferences, the grievor nevertheless maintained his position, relating that he had previously been disciplined for a relatively innocent alcohol related event, and was “… adamant that he get a lawyer before doing anything.”.

Following a disciplinary investigation the Company assessed 40 demerits against Mr. Laporte for conduct incompatible with his employment “… as evidenced as you being under the influence of alcohol while driving a Company vehicle entrusted to your care …”. As Mr. Laporte had previously had 40 demerits on his record, he was dismissed for an accumulated total of demerits in excess of 60.

It does not appear disputed that much of the Company’s conclusion with respect to the possible impairment of Mr. Laporte turns on his refusal to undergo a voluntary breathalyzer test. In that regard its representative draws to the arbitrator’s attention the following passage relating to the possible refusal of an employee to undergo a drug test, as reflected in CROA 1703:

“In addition to attracting discipline, the refusal of an employee to undergo a drug test in appropriate circumstances may leave that employee vulnerable to adverse inferences respecting his or her impairment or involvement with drugs at the time of the refusal”

“However where good and sufficient grounds for administering a drug test do exist, the employee who refuses to submit to such a test does so at his or her own peril.”

I agree that the foregoing principle can apply to a refusal to take a breathalyzer test. However, some care must be taken when applying these principles. If a refusal to undergo a drug test or a breathalyzer test can be said to raise a presumption against the individual who refuses, that presumption is not a conclusion, and it can be rebutted by good and compelling evidence to the contrary. Upon a careful review of the record the arbitrator is concerned that in the instant case the approach of the Company is tantamount to elevating the presumption of a possible inference into an absolute conclusion, in disregard of a number of evidentiary elements which go contrary to any adverse inference being drawn. In the arbitrator’s view it is important to remember that the issue is whether the grievor was impaired, so as to cause the highway accident which destroyed his truck. Firstly, there are no eye witnesses to that incident. There is no evidence to suggest that the truck itself was found to contain alcohol or alcohol containers. Secondly, a number of individuals, including the EB Eddy employees who drove the grievor to Ramsey have stated that they did not smell alcohol on Mr. Laporte. There is no indication in the statement of Mr. Farr that he detected an odor of alcohol from the grievor, and Mr. Lavallee specifically stated during the course of his examination that he did not smell alcohol on Mr. Laporte. Of equal significance, supervisor Lawrence Dillon, who met Mr. Laporte on the highway near Sutton relates that he spoke directly with the grievor and he could not smell alcohol on his person. Neither did Mr. Castilloux, although he indicates that he did not come into close contact with Mr. Laporte.

The grievor was obviously disturbed by the request made by Mr. Bell that he voluntarily submit to a breathalyzer test. However, the arbitrator can understand the motive which prompted Mr. Bell’s suggestion. Constable Moore had indicated to Mr. Bell his belief that he had smelled alcohol on the grievor. He had also told Mr. Bell that the grievor had given several inconsistent answers to his question as to whether he had been drinking, and that Mr. Laporte ultimately admitted to having consumed alcohol, albeit after the accident. In my view it was not unreasonable for Mr. Bell to suggest the breathalyzer test as a means of confirming the grievor’s account as to the amount of alcohol he might have ingested on the evening in question.

By the same token, the arbitrator can appreciate the perspective of Mr. Laporte. Firstly, it should be noted that although he showed no outward signs of impairment, he did suffer a head injury, subsequently diagnosed as a mild concussion. There is little reason to reject his account that he felt a certain degree of confusion about the events. That much is reflected to some extent in the account of Mr. Farr, and of Mr. Lavallee who indicated that the grievor was irritable and confused when he dealt with him.

Significantly, the report of the physician who examined Mr. Laporte at the Chapleau hospital gives no indication of a suspicion of impairment. On the contrary, the medical report, signed by Dr. Botterill, includes the partial notation “alert, oriented”. There are further reasons to explain, although not to excuse, the vagueness of the account tendered by Mr. Laporte, particularly to Mr. Bell. It appears that after the departure of the police constable Mr. Laporte made a statement to Mr. Bell suggesting that he may have been provided beer by the EB Eddy employees following the accident, but that he did not wish to get any of them into trouble. He also gave his supervisors an explanation as to his evasiveness with the police constable, stating that he panicked initially when being asked whether he had consumed alcohol.

It is not for the Arbitrator to excuse any lack of candor which may have been exhibited by Mr. Laporte, or speculate as to whether his statements were entirely innocent and prompted by confusion because of his head injury. However the fact remains that the whole of the evidence so understood does not go to support an inference that he was impaired at the time of the accident, or indeed impaired at any time whatsoever on the evening in question, although he may have had an odour of alcohol noticed by two persons, and apparently undetected by three or four others who were in immediate contact with him after the accident. On the evidence adduced, including the candid account of Mr. Bell with respect to the grievor’s outward appearance of sobriety, bolstered by the medical report fled in evidence, I cannot conclude in the instant case that the decision of Mr. Laporte to refuse to undergo a voluntarily breathalyzer test supports an inference, on the balance of probabilities, that he was impaired at the time of the accident involving his vehicle. In that regard it is further notable that the police authorities have appeared to have fully accepted the grievor’s own account of the loss of control of his vehicle, as reflected in a report which substantiates his description of the washboard condition of the slope where he slid off the road. I am therefore not satisfied that the Company has discharged the burden of proving, on the balance of probabilities, that Mr. Laporte was impaired at the time of his vehicle accident on the evening of September 1,1997.

The evidence at the hearing confirmed that the grievor has suffered ongoing injuries, both physical and psychological, as a result of his head injury. It does not appear disputed that he has been on Workers’ Compensation benefits, and unavailable for work since the time of his discharge to the date of hearing. On that basis the Union makes no request as to compensation for any wages lost. Therefore, the arbitrator allows the grievance, and directs that the grievor be reinstated into his employment forthwith, without compensation, but without any loss of seniority or benefits. I retain jurisdiction should there be any dispute with respect to the interpretation or implementation of this award.

Dated in Toronto this 23rd day of March 1999.

(signed) MICHEL G. PICHER

ARBITRATOR