SHP – 419
IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC LIMITED
NATIONAL, AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS UNION OF CANADA (CAW-CANADA) LOCAL 101
GRIEVANCE OF CARMAN S. PARTRIDGE
SOLE ARBITRATOR: Michel G. Picher
There appeared on behalf of the Company:
C Bartley – Human Resource Specialist
A. Y. de Montigny – Labour Relations Officer
P. G Chapell – Manager, District Coordinator, StL&H
T. B. Wilson – Relief Operations Coordinator - CP Rail
And on behalf of the Union:
Abe Rosner – National Representative
Ron Laughlin – Representative
William Nash – Local Chairman
Stacy Partridge – Grievor
A hearing in this matter was held in Toronto on September 16, 1996.
This arbitration concerns the discharge of Carman S. Partridge for being intoxicated while at work in a safety-sensitive position, breaking into and stealing the contents of a vending machine and the violation of operating rules with respect to the flagging and protection of tracks during maintenance operations. The Company’s statement of issue, filed at the arbitration hearing, reads as follows:
The dismissal of Carman S.W. Partridge, Toronto, effective September 19, 1994.
JOINT STATEMENT OF FACT:
Following an investigation in connection with Mr. Partridge’s actions during his tour of duty on August 20, 1994, the grievor was dismissed on September 19, 1994 on the following grounds:
Being intoxicated while on duty, consumption of intoxicants when subject to duty, working a safety sensitive position, inappropriate and unacceptable conduct as evidenced by having been criminally charged with breaking into and removing the contents of a vending machine on Company property violations of Rule 1-G of Form 302 and Toronto Yard Car Department General Safety and Health Rules 3 and General Rule 9, Toronto Car Repair Facility, August 20, 1994.
JOINT STATEMENT OF ISSUE:
It is the Union’s position that the discipline issued to Mr. Partridge was far too severe and that he was unjustly dismissed and that he should be reinstated without loss of seniority and compensated for loss of wages and benefits.
The Company denies the claim.
It is not disputed that on the evening of August 20, 1994 the grievor was found to be extremely intoxicated during the course of his tour of duty. It is also not disputed that he failed in his assignment to apply a lock and blue flag to a number of tracks in the yard, as a precaution sign, while other employees were working on equipment in the area. It further appears that he falsely stated, in response to a radio inquiry, that a flag was in place at the east end of Track F7 when, in fact, it was not.
The Union does not dispute the drinking transgression, as well as the violation of flagging and other rules engaged in by the grievor on the night in question. It does, however, contest that the evidence establishes, on the balance of probabilities, that the grievor was involved, apparently with another employee, in the removal of product and/or coins from a vending machine in the general yard office (GYO). The arbitrator is satisfied, on the balance of probabilities, that he was involved with the theft. Shortly before the break and enter he was seen entering the building with the other employee, carrying a carman’s bar. Shortly thereafter, the two employees were seen leaving the building, with the other employee carrying a box which, I am satisfied, later proved to be a box of snacks from the machine. Further, the grievor was found to have a substantial amount of coins in his pockets, including 47 quarters and 8 one dollar coins. On the whole, I am prepared to conclude that he was involved in the theft from the vending machine.
It is obvious that the conduct engaged in by Mr. Partridge on the night in question was deserving of the most serious measure of discipline, up to and including discharge. The only real issue before the arbitrator is whether his personal circumstances reflect mitigating factors which would justify a reduction in penalty.
The grievor is a relatively short-service employee, having been hired in March of 1989. He did not, however, have an extensive disciplinary record, as it appears he had five demerits against his record at the time of the events of August 20, 1994. Most significantly, the record now discloses that Mr. Partridge is an alcoholic. Although during the course of the Company’s disciplinary investigation he denied having been intoxicated, the evidence of a number of eyewitnesses makes it clear that he was not only intoxicated, but extremely so. More significantly, for the purposes of mitigation, the record reveals that following his termination, Mr. Partridge took extensive steps to obtain treatment and rehabilitation in respect of this medical condition.
On March 6, 1995, the grievor was admitted for in patient treatment at the Renascent Centre at Brooklin, Ontario. He completed the in patient program on April 2, 1995, as confirmed in a letter from the Centre of the same date. Further, documentation discloses that the grievor thereafter enrolled in an ongoing program of Alcoholics Anonymous, which he continues to follow to the present time. Further, in September of 1995, he did a relapse prevention program at the Pinewood Centre (Community Addictions Services) of Oshawa General Hospital. In short, the record before the arbitrator discloses that it was only following his discharge, a circumstance not unusual in light of the syndrome of denial which afflicts many alcoholics and drug addicts, that the grievor acknowledged his condition and took steps to bring it under control. The documentation placed in evidence confirms that Mr. Partridge has been sincere and faithful in his efforts at rehabilitation and that he has been successful in remaining alcohol-free and substance free for a substantial period of time.
The Company’s representative submits that, in the circumstances, there should be no leniency shown to the grievor as to do so would, he argues, encourage other employees to disregard the prohibitions against alcohol when on duty or subject to duty. With respect, the arbitrator cannot agree. Alcoholism, like drug addiction, is a disease in respect of which the employer owes some degree of reasonable accommodation to the employee under the provisions of the Canadian Human Rights Code, short of undue hardship. For that reason, as reflected in prior awards, boards of arbitration are inclined to give substantial weight to mitigating factors such as documented evidence of an alcoholic’s rehabilitation and ongoing participation in follow-up programs (see e.g. SHP 391, CROA 2502 and CROA 2694).
In the instant case, I am satisfied that the aberration of conduct, which is obviously extreme, engaged in by the grievor on August 20, 1994 was due to the excessive consumption of alcohol by the grievor, prompted by his condition as an alcoholic. That condition is now under control and, having regard to the documentation, there is every reason to believe that the grievor will continue to be abstinent. Further, there are means to fashion the grievor’s reinstatement into productive employment subject to conditions which will protect the employer’s legitimate interests. On the whole, therefore, the arbitrator is satisfied that this is a case for a reduction of penalty.
The grievance is, therefore, allowed, in part. The arbitrator directs that the grievor be reinstated into his employment, without compensation or benefits and without loss of seniority. Mr. Partridge’s reinstatement shall be conditional to his agreeing to be subject to random alcohol or drug testing, to be performed in a non abusive manner for a period of not less than two years from the date of his reinstatement. He shall, as a further condition for the same period, provide to the Company quarterly written reports from an officer of Alcoholics Anonymous or such other agency as the parties may agree on, to confirm his ongoing involvement in the follow up activities of that organization. I retain jurisdiction in the event of any dispute between the parties with respect to the interpretation or implementation this award.
DATED this 3rd day of October, 1996.
(signed) MICHEL G. PICHER