SHP - 443
IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC LIMITED
CAW/TWA - CANADA, LOCAL 101
RE: GRIEVANCE OF E.S. WOLANICKI – DISCHARGE
SOLE ARBITRATOR:P. Colleen Suche, Q.C.
APPEARING FOR THE UNION:
B. R. McDonagh – National Representative
Glenn Michalchuk – Vice President, Prairie Region
APPEARING FOR THE COMPANY:
S. Moutinho – Labour Relations Officer
K. E. Webb – Manager, Labour Relations
A hearing in this matter was held in Winnipeg on July 23, 1996.
In this case, the Union grieves that the Grievor, Eugene Wolanicki was unjustly dismissed from his position as an engine attendant in the Winnipeg Diesel Shops on May 12, 1992. The Union requests that the Grievor be reinstated without loss of seniority and with full compensation for all lost wages and other benefits.
A hearing was held in Winnipeg on July 23, 1996, which proceeded by way of submission of written materials, as well as testimony from the Grievor and one other witness called by the Union.
By way of background, the Grievor is 35 years of age. He entered the Company’s service in 1981. At the time of his dismissal, he was employed as an engine attendant, and had been so since April of 1989. Prior to that he worked as a labourer. In total he had ten and a half years of service with the Company. His discipline record was clear, with only two infractions during employment. Both were running though a switch, which garnered a caution and 10 demerits respectively.
The basis for the Grievor’s dismissal is stated in a letter to him dated May 12, 1992, namely:
Please be informed that you are DISMISSED for consuming alcohol at a time shortly before the scheduled starting time of your regular assignment as an engine attendant and for reporting for duty under the obvious influence of alcohol, Winnipeg Diesel Shop, Winnipeg, Manitoba April 16, 1992.
The particulars of the incident are not substantially in dispute. On the day in question, the Grievor reported to work at 23:38. When he was not in his usual place to receive his job assignment at 00:01, his supervisor, J. Lawley paged him. Several minutes later Lawley observed the Grievor. It was apparent that the Grievor was significantly impaired, and completely incapable of performing his assignment to work outside as an engine attendant. After discussion with Lawley, and thereafter, Lawley and the assistant Manager, J. Christie, the Grievor was taken home. An investigation was subsequently undertaken following which the Grievor was dismissed.
In his initial conversation with Lawley, the Grievor admitted that he had been drinking, although when interviewed by Christie, he denied this was so. In his statement to the Company on April 20, 1992, he admitted that he had consumed 5 to 6 ounces of liquor within hours of reporting to work. He maintained that he had never done this before, and when the Company’s EAP program was raised, the Grievor maintained that he did not need assistance because he had never previously reported to work after drinking.
The Grievor testified on his own behalf. He indicated that he felt he did not really have a problem with alcohol at the time of his dismissal, but developed one thereafter. In April 1994, he contacted the Addictions Foundation of Manitoba seeking help. He attended one day of the 28 day residential treatment program offered by the Foundation. He did not follow through with this and did not give any real explanation for not doing so. In October of 1994, he joined Alcoholics Anonymous and has attended meetings of the Serenity Group regularly since. He has taken the 12 step program and received his one year achievement award October 1995. He also stated that regardless of whether he is reinstated, he recognizes that alcohol is no solution for his problems – his days of drinking are over.
Ron Mills is the Alcoholics Anonymous service representative for correctional facilities in Manitoba and testified on behalf of the Union. He is the Grievor’s temporary sponsor and confirmed that the Grievor has been attending AA meetings since October 1994. He thinks the Grievor is sincere in his attempts to rehabilitate himself, and says he is not aware of the Grievor having any slips over the past two years.
The Company’s position is that the use of alcohol by an employee subject to duty in a safety sensitive position is incompatible with continued employement. In this regard, it relies on a number of decisions involving both the Company and other employers where employees have been dismissed as a result of their consuming, or being found in possession of intoxicants or narcotics.
Further, says the Company, there are no mitigating or compassionate grounds to reinstate the Grievor. It points to the fact that he only attended one day of a 28 day treatment program in 1994, and the only evidence to support the Grievor’s claim to rehabilitation is from Mr. Mills, which describes relatively recent efforts that do not provide the Company’s view of the Grievor’s efforts might be described as too little, too late.
Consuming alcohol immediately prior to commencing work at a workplace where issues of safety are a significant concern, demonstrates a degree of irresponsibility of enormous proportions. It may also be a symptom of alcoholism, however, which collectively society has come to recognize as an illness and should be treated as such. The question remains as to whether this was in fact the case in the Grievor’s situation. On the one hand, all circumstances suggest this is so. The Grievor, however, suggests that his problem with alcohol did not really begin until after he was dismissed. Whether or not this is simply denial is a matter which would take the application of some professional judgement.
The Company refers to CROA case number 2716, in which Arbitrator Picher stated:
It is, of course, important for boards of arbitration to safeguard against spurious claims of rehabilitation, patched together in an opportunistic way so as to regain employment for an individual who has not in fact either recognized or truly come to grips with his or her addiction. It is for that reason that this Office, and the other boards of arbitration generally place a significant onus upon the employee seeking the benefit of the arbitrator’s discretion to bring forth substantial documentary evidence to confirm a meaningful course of rehabilitation and follow-up.
I agree with this statement. However, having heard the Grievor’s evidence, as well as that of Mr. Mills, it appears that the Grievor has, in fact, come to grips with his dependency, has gone some distance to rehabilitate himself, and is sincere in his efforts to continue to do so. I am concerned, however, about the apparent inconsistency between this and his view of the incident that led to the dismissal. In addition, the evidence falls somewhat short of satisfying the Company’s legitimate concerns regarding reliable prognosis.
While this may be somewhat unusual – and I do consider it to be so – I am prepared to allow the Grievor the opportunity to demonstrate that he can meet the onus that is on him. Specifically, I am prepared to order that the Grievor be reinstated on the following conditions:
1. Within six months of the date of this Award, the Grievor will provide the Company with an assessment from a recognized treatment centre or provider indicating that he has either successfully undergone treatment, or in the alternative, does not require any ongoing treatment relating to his use of alcohol;
2. Upon providing the Company with such assessment the Grievor will be reinstated with seniority but without benefits or lost wages since the date of his dismissal;
3. The Grievor will follow any recommendations made by the treatment centre/provider in the assessment;
4. The Grievor will abstain from consuming alcohol;
5. The Grievor will continue to attend AA meetings on a regular basis for a period of two years. The Grievor must provide the Company with the name of his sponsor, and must provide the Company with the sponsor’s written confirmation of the Grievor’s attendance at meetings;
6. The Grievor will be subject to random drug/alcohol testing by the employer for two years following reinstatement; and
7. Should the Grievor fail to observe any of the above conditions, he will be liable to dismissal.
I will retain jurisdiction in the event there are any difficulties in the interpretation, application or implementation of this award.
Dated at Winnipeg this 20th day of August 1996.
(signed) P. COLLEEN SUCHE, Q.C.