SHP - 447
IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC LIMITED
CANADIAN AUTO WORKERS - TCA CANADA, LOCAL 101
RE: FLUG ARBITRATION
SOLE ARBITRATOR:H. Allan Hope, Q.C.
APPEARING FOR THE UNION:
APPEARING FOR THE COMPANY:
D.E. (Dave) Guerin
A hearing in this matter was held in Vancouver, B.C. on May 28, 1997. Written Submissions on June 2 and 4; and July 3, 1997
I - THE DISPUTE
On May 19, 1992 the Railway dismissed the grievor, L.N. Flug. That decision was communicated to him on May 22, 1992 in a dismissal letter which reads as follows:
Please be informed that you have been dismissed for falsifying your abstinence reports over an extended period of time and for failing to maintain (abstinence) from alcohol while participating in the Company’s Alcohol and Drug Abuse Control programs; a violation of the terms and conditions of your employment, Calgary, Alberta. (Emphasis added)
It can be seen from the letter that the Railway relied on two grounds to support the dismissal. The first was falsification of abstinence reports. The second was failing to abstain from the consumption of alcohol. On June 3, 1992 a grievance was filed challenging the grievor’s dismissal. It is worth noting at this stage that the facts developed in the hearing did not disclose that the grievor’s alcohol problems were work-related. That is, his use of alcohol was not shown to have affected his attendance or his performance at work. Further, there was no indication that he had consumed alcohol at work or that he had reported for work under the influence of alcohol. Rather, his alcohol problem arose off-duty in circumstances that brought it to the attention of the Railway.
In that sense, the facts were unusual, if not unique. In ordinary circumstances it is the effect alcoholism has on an employee’s attendance, conduct or work performance that attracts sanctions. In this dispute, apart from an isolated incident in August of 1990, there was no indication of alcohol-related problems at work or that the grievor was not a satisfactory employee. The Railway’s position was that the circumstances surrounding the grievor’s off-duty alcoholism, his failure to honour his agreement to abstain from alcohol, and his falsification of his abstinence reports constituted just cause for his dismissal. Its particular concern arose with respect to the implications arising where an employee in a safety sensitive position has an addiction to a substance which is capable of impairing their ability to function at work.
The Union first submitted that the dismissal had been rendered void by reason of the Railway’s failure to abide by the discipline provisions of the collective agreement. Its alternative position was that dismissal was an excessive response to the circumstances. In particular, the Union argued that the facts confirmed that the grievor was a good employee at all material times, that his alcohol problem was minor and under control when he was dismissed, and that his failure to disclose in his abstinence reports that he had consumed some alcohol was understandable in the circumstances and carried no adverse implication in terms of his employment relationship.
II - FACTS
The grievor commenced his employment on May 30, 1980 and, in May of 1992, was working as an engine attendant at the Railway’s operations at Calgary, Alberta. Hence, he had approximately 12 years of service at the time of his dismissal. Also, at the time of his dismissal, he continued to be subject to a December 4, 1990 commitment to remain abstinent and to file periodic abstinence reports. In compliance with the undertaking set out in that agreement, the grievor commenced filing standard "abstinence" forms which were completed by his family doctor. The form was directed to the Railway’s chief medical officer.
Copies of forms dated December 21, 1990 through to February 28, 1992 were filed in evidence. In those forms, Dr. W.G. Campbell, the grievor’s family doctor, confirmed that the grievor had visited his office and had "claimed" to have "remained abstinent since his last visit". The forms each contained an assurance that the grievor had not "used alcohol since October of 1990". It was conceded by the Union that the facts contained in one or more of those reports were false in the sense that the grievor had not abstained from the use of alcohol "since October of 1990". However, there continued to be a factual difference between the parties with respect to the extent to which the grievor had returned to the use of alcohol in the period prior to his dismissal.
On the facts, the Railway became aware of the grievor’s alcohol problem on his own initiative in September of 1983. Thereafter, he participated in various programs designed to bring his consumption of alcohol under control. I digress to note that he was dismissed in 1985 as a result of having been incarcerated for a period of eight months for conduct unrelated to his employment. He was reinstated by the Railway after his release and in response to the filing of a grievance. Thereafter, between June of 1987 and September of 1990, he was disciplined on three occasions. However, at the time of his dismissal in 1992, his discipline record was clear, and, in any event, the Railway, in its letter of dismissal, did not seek to rely on his discipline record to support its decision.
Returning to the narrative, the grievor had advised the Railway on September 16, 1983 that he had a problem with alcohol and, to paraphrase the submission of the Railway, he "sought assistance with the Alberta Alcohol and Drug Abuse Commission (AADAC)". In response to his initiative, the grievor was told by a supervisor to "get involved with the [Alcoholics Anonymous] program". Included in the material filed by the Railway was a note written by the supervisor which included the following extract:
(An AA representative) was contacted and an interview was arranged with (the grievor). (The representative) informed myself on September 19, 1983 that (the grievor) was sincere and had attended AA meetings with him over the weekend and would continue. Therefore we allowed him to take a couple of shifts off and advised him to continue in the program until his problem is resolved.
The indication in the facts developed in the hearing was that the Railway’s support programs for employees with alcohol problems were at a developmental stage at that time. In any event, in 1985, coincidental with the grievor’s incarceration, he advised the Railway that he was continuing to have an alcohol problem. (The implication was that the incident that gave rise to his incarceration was also alcohol-related). The outcome of events in 1985 was recorded in the Railway’s submission as follows:
(The grievor) agreed to attend Alcoholics Anonymous meetings regularly to deal with his addiction. Additionally, (he) applied to attend both the Southern Alcore Manor in Lethbridge as well as the Landers Centre in Claireshome for treatment. (He) declined, however, to partake (in) the Company’s Alcohol Control Program.
As stated, those events occurred coincidental with the grievor’s incarceration and occurred prior to his reinstatement in December of 1985, which, from the perspective of the Railway, "(was) based on his personal assurance that he had dealt positively with his problems surrounding the misuse of alcohol". The next event occurred in June of 1989 when the grievor did enter the Railway’s "Alcohol and Drug Abuse Control Program". He also attended an in-house treatment at the David Landers Centre in Claireshome. He successfully completed the program and entered into an agreement with the Railway to "abstain completely from the use of alcohol and drugs in the future as a condition of his continued employment". However, on August 15 and 16, 1990, the grievor failed to report for work without prior notification. In this dispute, the Railway sought to rely on that incident to support the dismissal. Following is an extract from its written submission:
11. On August 15 and 16, 1990, Mr. Flug was absent from work without notification and it was developed during the ensuing investigation that the grievor had yet again lapsed back into the use of alcohol as evidenced by the following Q&A’s on August 29, 1990:
Q7. According to our records, you were absent from work on Aug. 15 & 16/90. Is this correct?
Q8. Will you please explain why you were absent on Aug. 15 & 16/90?
A.8. Due to family problems, I became intoxicated by drinking alcoholic beverages on those two days.
In his supplementary statement of September 5, 1990, the following was confirmed:
Q.4. Do you understand the inevitable consequences of your failure to fulfill your commitment to the Alcohol/Drug Program?
Q.5. What is the inevitable consequence?
A5. Lose my job.
The Railway did not take disciplinary action in response to the grievor’s lapse. Its restraint, to paraphrase its submission, was:
(I)n recognition of the fact that alcoholism is a disease and that dismissal was not the appropriate response for a first "lapse" under the Company’s (EAP) even for employees holding safety sensitive positions. As was the case with (the grievor), employees were often afforded a "second" but "last chance" at rehabilitation out of compassion, notwithstanding the fact that employees were made well aware that any failure to abide by the conditions outlined in their Abstinence Agreement could have resulted in their dismissal.
The grievor renewed his participation in the Railway’s EAP and resumed his attendance at AA meetings. He also received counselling in anger management at the Bow Valley Forensic Unit and in-house treatment at Alberta Hospital Ponoca Rehabilitation Centre. Upon completion of that program, the grievor entered into a further abstinence agreement dated December 4, 1990. It was in the following form:
Further to our discussion of December 04, 1990, this will confirm my agreement to abide by the conditions of the Company’s Alcohol and Drug Abuse Control program and to:
a) Abstain completely from the use of alcohol/drugs in the future
b) participate regularly and actively in Alcoholics Anonymous (or in the case of drug abuse, a similar Counselling agency approved by the Company)
c) submit reports of abstinence at required intervals
I understand that failure to comply with this agreement may result in my being held out of service with possible closure of my record.
In terms of this dispute, it was a breach of the December 4, 1990 agreement that led to the grievor’s dismissal on May 19, 1992. The events giving rise to the dismissal began in January of 1992 when the Railway became concerned about the possibility that the grievor had resumed his off-work use of alcohol. I pause to repeat that there was no workplace conduct that triggered the Railway’s concern. Rather, in a telephone call to the Railway, the grievor raised the suspicion that he may have been drinking. In response to that concern, the Railway communicated with the coordinator of its EAP, Bob Yoxall, and asked him to look into that possibility.
Mr. Yoxall was employed by the Railway but occupied what was essentially a neutral position as between the Railway and the Union. In particular, communications between employees and the coordinator were confidential. Confidentiality was viewed by the Union as an essential aspect of the program. The Railway did not agree. The subject was addressed in Canadian Pacific Railway and Canadian Auto Workers, Local 101 (Pollock), (1996) 59 L.A.C. (4th) 324, where the arbitrator wrote on p. 329 as follows:
I agree with the Union that facts developed in the course of participation in the Railway’s EAP should be treated as confidential. In particular, facts revealed by an employee in the course of participation in the program should not be disclosed to the Railway and should not form the basis for disciplinary action. But employees in an EAP remain accountable for continuing acts of misconduct and for breaches of any conditions attached to their participation in the program to which they have agreed, particularly those that are subject to the rider that breaches may attract discipline. (Emphasis added)
Returning to the narrative, the Railway, as stated, responded to its concerns by referring that matter to Mr. Yoxall. He had a discussion with the grievor with the result recorded in paragraph 17 of the Railway’s submission that the grievor "was advised to attend an assessment at the (Alberta Alcohol and Drug Abuse Commission (AADAC) Counselling Office in Calgary". That assessment resulted in a report written by R.W. Olsen, a counsellor with the AADAC. It was sent to Mr. Yoxall on March 12, 1992. Mr. Yoxall provided the Railway with a copy of the report.
The report triggered a series of three investigative meetings that commenced on March 17, 1992. The grievor was represented in the meetings by the senior steward of his then union, the International Brotherhood of Firemen and Oilers (I.B.F. & O). The second meeting was on April 6, 1992 and the third and final meeting was conducted on April 27, 1992. The grievor, as indicated, was dismissed on May 19, 1992. In short, the process occupied 64 days. The Union urged in its opening position in this hearing that the dismissal was void because the Railway had failed to comply with the collective agreement. In particular, the Union saw the investigative meetings as three separate investigations and an abuse of the process set out in Rule 8.1 of the collective agreement. That rule provides, inter alia, that employees facing discipline are entitled to a "fair and impartial investigation" of any allegations made against them. The facts here, said the Union, did not reveal a "fair and impartial investigation".
The Union was concerned also over the fact that the three investigative meetings were held over a period of 42 days. Its position was that failing to complete the process within 28 calendar days of the first investigative meeting was a breach of the agreement. The provision relied on by the Union in support of its submission on timeliness reads as follows:
An employee will not be held out of service unnecessarily pending the rendering of a decision. The decision will be rendered as soon as possible but no later than 28 calendar days from the date the report of investigation is referred to the officers designated in Step II of the grievance procedure unless otherwise mutually agreed.
On the merits, the Union position was that the Railway had failed to establish on a balance of probabilities that the conduct of the grievor was deserving of any form of discipline and, in any event, that the dismissal was excessive. As stated, the position of the Union on the AADAC report was that it was initiated under the EAP and was confidential. Its position was that Mr. Yoxall should not have communicated it to the Railway. The Union conceded that it was open to the Railway to have made an arm’s length request of the grievor to submit to an assessment and, if he did submit, to have any resulting report presented in evidence. But, said the Union, the report in question was generated in circumstances in which the grievor had an expectation of confidentiality.
I digress to note that I agreed with the Union that the report was not admissible on the grounds that it was generated in circumstances in which the grievor had a clear and justifiable expectation of confidentiality. See Brown and Beatty, Canadian Labour Arbitration at para. 3:4340 at pp. 5-54 and the discussion of confidentiality in the Pollock Arbitration on p. 329. In any event, the grievor disagreed with the facts asserted in the report, saying that its author did not accurately record the history of his alcoholism. That factual difference was expressed in the investigation minutes and in the grievance filed by the grievor’s former Union on June 3, 1992. It reads as follows:
Please accept this Step II grievance under article (8) of our grievance procedure between Canadian Pacific Rail and the International Brotherhood of Firemen and Oilers. It has come to my attention that on May 19, 1992, one (1) of our members, Mr. N. Flug was dismissed from his duties at Alyth Diesel Shop in Calgary for failure to comply with the Drug and Alcohol program. Reading over the investigation and speaking with Mr. N. Flug he clearly stated that he only consumed a small amount of alcohol on his rest days. Due to the fact of the situation that occurred in his family, the assessment taken by Mr. Olson (AADAC) counsellor, there seems to be a misunderstanding, as you will read in the investigation.
Mr. N. Flug’s past attendance for missing time is very impeccable. He has served the company for twelve (12) years and is a good worker. Mr. N. Flug has never come to work under the influence of alcohol. Only due to a severe family matter he consumed some alcohol on his rest days to relieve the ongoing situation. Unfortunately at times alcohol plays its role on individuals.
In recent times, I have attended company meetings in regards to Drug and Alcohol abuse and hope to see Mr. N. Flug’s situation corrected. Mr. N. Flug is willing to enter a program and have his problem corrected. Therefore, we wish to have Mr. N. Flug returned back to his duties at Alyth Diesel and given proper treatment for his problem. I have enclosed all information regarding this investigation for your convenience. Thank you for your time and consideration in the matter. (emphasis added)
It was apparent in the submission of the Railway that management did not believe the grievor. Rather, the Railway relied on facts contained in the confidentiality report to support a conclusion that the grievor had a serious alcohol problem, that he was drinking heavily during his off-duty hours, and that his assertion of errors in the report was false. That conclusion shaped the Railway’s perception of the grievor’s alcoholism at the time of his dismissal. In its written submission the following position was advanced:
i) Mr. Flug failed to meet his obligation to abstain from the use of alcohol while he was an active participant in the Company’s Alcohol and Drug Abuse Control Program.
Ii) Mr. Flug submitted falsified reports of abstinence, a clear contravention of the condition of his employment and a requirement of his letters of commitment dated June 16, 1989 and December 4, 1990.
Iii) Mr. Flug has unsuccessfully undergone formal treatment on several occasions, at least twice of his own volition during 1983 and 1988 and twice under Company sponsored treatments in the Company’s Alcohol and Drug Abuse Control Program in 1989 and in 1990.
iv) Five years have passed since the time of Mr. Flug’s dismissal and the Union has failed to demonstrate or provide any documentation that Mr. Flug took any steps to rehabilitate himself following his dismissal.
The Union differed. Its perspective was recorded in its written submission as follows:
57. The Union points out that there was absolutely no evidence brought about at the investigation of L.N. Flug that suggests that L.N. Flug had ever come to work under the influence of alcohol.
58. There was no evidence brought out that L.N. Flug’s work performance had deteriorated nor was there any evidence produced that L.N. Flug’s absenteeism had increased or that a pattern of missing time had developed.
59. All of these are classic indicators of a trouble employee, yet none of these indicators were present in L.N. Flug’s case. This, in the Union’s view, affirms that L.N. Flug had a minor relapse and had brought it under control.
As indicated, the Railway believed that the grievor’s alcoholism, in effect, was out of control to the extent that he required further rehabilitation. That difference in understanding led the Railway to comment in paragraph 26(iv) of its argument that five years had passed since the grievor’s dismissal with no indication or documentation that he "took any steps to rehabilitate himself following his dismissal". On that issue, the Union filed copies of letters in these proceedings dated May 22 and May 23, 1997. The first letter was from Gordon Russell, a counsellor who supervised the grievor while he was in treatment at the Christian Love and Shelter Program in Calgary from April to August of 1996. The substance of that letter reads as follows:
Mr. Flug was an asset to both himself and others while in treatment and was well thought of by both staff and clients alike. He was more than willing to volunteer for extra chores etc and spent many hours talking to other clients who may have been having problems. Mr. Flug and I have kept in contact with each other since I left my position with the centre and to the best of my knowledge has maintained his sober lifestyle for all but two nights after which he returned to the sober lifestyle that he had chosen for himself. As well Mr. Flug has actively kept working on his anger management issues to both his own benefit and that of his family. I would suggest that if Mr. Flug continues on the course he has set for himself that he will be an asset to himself, his family and any employer that he has.
The second letter was from A. Babin, a counsellor at Fresh Start Addictions Centre in Calgary. He wrote with respect to the grievor’s participation in an inpatient treatment program from June 3 to November 18, 1996. The letter reads as follows:
Mr. Flug was involved in the inpatient treatment program at Fresh Start from June 3, 1996 until November 18, 1996. During that 5 month period Mr. Flug was an active participant in all scheduled activities and programs and appeared to establish meaningful and significant relationships with most of the staff and residents in the building. As well, he attended anger management group sessions at an outside agency (YWCA), was an active member of AA and he acquired and made appropriate use of an AA sponsor. Mr. Flug completed Step 5 of the AA program while in treatment and made a commitment to continue "the steps" on his own following treatment. Mr. Flug’s association with this treatment facility was not positive. He left with more than 6 months sobriety and indicated that he intended to remain sober, to continue his involvement with AA, to reunite with his family and to become an asset to his community.
The evidence of the grievor was that he had remained sober as of the date of the hearing and that he did not anticipate any relapse. Further, he repeated his assertion made in the investigative interviews that despite minor lapses in the period prior to his dismissal, he remained in control of his problem. But the conclusion reached by the Railway was that the grievor had suffered what amounted to a complete relapse and that he was using alcohol excessively during the period in question. That conclusion was reached by the Railway on the basis of the report which was ruled inadmissible. The Railway was not in a position in this hearing to provide independent proof of the facts asserted in the confidential report, either with respect to the accuracy of the statements attributed to the grievor or with respect to the extent of the grievor’s alcohol problem at the material time. In the result, the Railway was deprived of certain of the factual underpinnings upon which it had relied in support of the dismissal.
As indicated, those facts included statements attributed to the grievor by the AADAC counsellor in the report. I digress to repeat that the grievor denied the statements attributed to him. His denial came at the time and in this hearing and the Railway conceded that it was not in a position to call evidence to support its perception of the grievor’s problem. That is not to say that the grievor denied that he had consumed alcohol. The issue was the extent of his consumption and the extent to which his failure to honour his abstinence agreement supported the inference that his conduct constituted more than a minor breach of that agreement.
The facts that remained uncontradicted with respect to the grievor’s consumption of alcohol were statements he made which were recorded in the Railway’s investigation notes made in the three investigative interviews. In particular, the grievor said that approximately three months before the investigative interviews, being January of 1992, he had learned that his 17-year-old son had been sexually molested when he was 14 years old. He said that the stress associated with that family problem complicated his efforts to maintain his abstinence. He said that, as a consequence, during the period after January of 1992, he began resorting to alcohol, but to a limited extent.
The grievor said that those stresses intensified as the charge of molestation proceeded through the justice system. In particular, the person accused of molestation of the grievor’s son was scheduled to appear in court on March 11, 12 and 13, 1992. The grievor applied for two days off to permit him to accompany his son to counselling with respect to the trauma he had experienced. He said that in the context of the stresses associated with that experience, he returned to consuming alcohol "only in small doses and on the odd occasions when my feelings (were) overcome". In the investigative interview on April 6, 1992 he was asked if he had been in violation of his December 1990 abstinence agreement and he replied:
Approximately four months ago I became aware of a Calgary City Police investigation concerning a sexual assault on my son. Because of this I did occasionally have a beer on my day off to try to overcome the distress within my family and to try to deal with the situation. At most I would have four or five bottles of beer. This happened four or five times.
The issue of the extent to which the grievor had been in breach of his commitment to avoid alcohol was revisited in the third and final investigative meeting on April 27, 1992. He was again questioned with respect to the report made by the AADAC counsellor, Mr. Olsen. In that interview he explained that he had not disclosed in his abstinence reports that he had consumed alcohol because, "I felt I could handle a couple of drinks but still control it in the future. Because of my family’s situation I did not want to jeopardize my job (by disclosing that I had consumed some alcohol)".
In the interviews the grievor said that his last drink had been "approximately mid-February 1992" and that he had attended three or four AADAC meetings since mid-February, the last one being approximately one week before his interview. In the final analysis, the facts asserted by the grievor with respect to his drinking were challenged but were not contradicted nor disproved.
III - POSITION OF THE RAILWAY
The position of the Railway in response to the Union submission with respect to procedural deficiencies was that neither the facts nor the arbitral authorities supported the Union’s position. It pointed out that the Union had not raised that issue prior to the hearing with the result that it had been given no opportunity to prepare to meet it. The Railway’s position in the hearing was that there were authorities in support of its submission which it would provide later to the Union and the arbitrator. The Railway then filed a written submission on June 2, 1997 which included authorities which supported the position it had taken in the hearing. In the submission the Railway restated its argument in detail but did not add to its basic position that the language and the authorities did not support the Union’s procedural objection.
Turning to that submission, the Railway relied on the reasoning of Mr. Picher in CROA Case No. 1696 where he wrote in part:
In the arbitrator’s view it would require clear and specific language to conclude that in this context the parties intended a strict application of the time limits, failing which the Company would forfeit its ability (to) impose discipline for misconduct, however serious.
The language in that case was not the same but, said the Railway, was sufficiently similar in structure to support the conclusion expressed by Mr. Picher. Further, Mr. Picher applied the same reasoning in CROA Case No. 2488 where he reviewed a number of the same principles at issue in this dispute. The Railway’s position at the hearing and in its written submission was that the investigative process was not in breach of the collective agreement and that the dismissal decision was made within the time required.
In its original submission the Railway also cited a number of Canadian Railway Office of Arbitrations (CROA) decisions to support the proposition that breach of an abstinence agreement is itself conduct deserving of dismissal. Included were Case Numbers 2753, 2595, 2632, 2704, 2743, and 2753. The theme of those decisions was summarized in Case No. 2753 in which Mr. Picher repeated views he had expressed in earlier decisions to the effect that arbitrators should not interfere with agreements made between the parties to settle grievances because it would have the effect of discouraging such settlements.
The Railway also relied on the decision in the Pollock Arbitration as support for the proposition that employees who have entered into EAP contracts are accountable to the Railway for their conduct and that a failure to be frank in the discharge of those commitments can itself constitute just cause for dismissal. The Railway also relied on that decision as support for the proposition that employees who are employed in safety-sensitive positions and are the subject of EAP restrictions with respect to the consumption of alcohol or a drug face dismissal in response to a breach of those restrictions. That is so because they represent a notional risk that they may attend work while impaired and thus endanger themselves, their fellow employees and the Railway’s equipment and operations and the Railway is therefore entitled to be aware that the employee has resumed the consumption of alcohol.
Finally, the position of the Railway was that the evidence tendered by the Union with respect to the recent rehabilitative initiatives taken by the grievor could not be relied on to support his reinstatement because of the reasoning of the Supreme Court of Canada in Quebec Cartier v. Metalhurgistes Unis D’Amerique, Local 6869, (1995) 2 SCR 1095; 95 CLLC 141,253. That decision, said the Railway, prohibits arbitrators from relying on post-dismissal events to support a decision to reinstate an employee who has been dismissed for alcohol-related misconduct.
IV - POSITION OF THE UNION
As stated, the Union’s first position was that the Railway had failed to follow the procedure set out in Article 8 of the collective agreement with respect to investigations and the imposition of discipline. The Union argued by way of alternative that if the Railway was to be seen as having complied with Article 8.1, it had failed to comply with the time limits set out in Article 8.3. That failure to comply also rendered the discipline void, said the Union. That provision, as previously cited, required that disciplinary decisions be made within 28 calendar days after investigative reports are filed with the officers designated to make the decision in question.
Here the Union argued that the time should be seen as starting to run after the first investigative meeting. On that basis, the Railway was in breach of Article 8.3 of the agreement. In the result, said the Union, the dismissal must be seen as void. It relied in that regard on Canadian National Railway Company and Canadian Council of Railway Shop Craft Employees and Allied Workers (Gaffney Arbitration), May 18, 1982, unreported (Weatherill) and Canadian Pacific Limited and the Brotherhood of Railway Carmen (Wareham Arbitration), November 3, 1986, unreported (Weatherill).
In the Gaffney Arbitration Professor Weatherill was dealing with a circumstance in which the Railway had not rendered a decision within 28 calendar days from the date the investigation report had been referred to the officers designated by the Railway to make the decision. He concluded that the proceedings involving the dismissal were a nullity and ordered the reinstatement of the grievor. In the Wareham arbitration, Professor Weatherill was again dealing with circumstances in which no disciplinary action was taken within the 28 calendar days designated in that collective agreement.
On the merits, the Union said that if the finding was that the dismissal was not void, the facts did not constitute just cause for dismissal. Accepting that the grievor was in breach of his abstinence agreement, said the Union, he was entitled to be reinstated on the basis that his alcohol problem was under control. It relied in part in that regard on the evidence of the grievor’s rehabilitation efforts in 1996. That evidence was admissible, said the Union, on the reasoning in Westmin Resources Limited and Canadian Auto Workers, Local 3019 (Tardiff Arbitration), April 28, 1997, unreported (Germaine). It was cited by the Union as support for its position that facts arising after a dismissal can be considered in determining whether an employee who has been dismissed as a result of alcohol related conduct should be reinstated.
Mr. Germaine relied on such evidence in Westmin Resources. In doing so, he distinguished a number of prior authorities, including the decision of the Supreme Court of Canada in Quebec Cartier. After a careful review of the relevant authorities, he concluded on p. 32 that he should not consider himself bound to follow the decision of the Supreme Court of Canada in Quebec Cartier because he was governed by the reasoning of the former Labour Relations Board in Wm. Scott & Company, (1977) 1 C.L.R.B.R. 1 (Weiler), and that its reasoning and governing principles are in conflict with the decision reached in Quebec Cartier.
In terms of that reasoning, it is useful to note the following comments made by Mr. Germaine with respect to the application of Quebec Cartier to arbitrations, such as this one, that are conducted under the Canada Labour Code. He wrote as follows on p. 32:
As far as the awards dealing with the Canada Labour Code are concerned, counsel for the Company argues the arbitrators erred. Counsel cites Canadian Airlines International Ltd. V. Canadian Airline Pilots Association (1995), 15 BCLR (3d) 59 (SC), which set aside an award for excess of jurisdiction. The specific error related to the reinstatement remedy granted by the arbitrator but in the course of its reasons the court considered the application of Quebec Cartier to an arbitration under federal labour legislation. The legislation provisions are compared, and the reasons of the Supreme Court of Canada considered. The relevant conclusion is that: "(b)y parity of reasoning it would not be open to an arbitrator under the (federal) Code to find cause existed and use post-dismissal evidence of rehabilitation to order reinstatement" (at 70).
In short, Mr. Germaine concluded that his reasoning did not apply to arbitrations governed by the Canada Labour Code. In that context, the Union argued that if the circumstances did not support a finding that the Railway lacked just cause to dismiss the grievor in the first instance, then they must be seen as mitigating in favour of his reinstatement pursuant to s. 60(2) of the Canada Labour Code. See Re Canadian National Railway Co. and United Transportation Union, (1995) 43 L.A.C. (4th) 124 (Picher). The following appears on p. 135:
The exercise of an arbitrator’s discretion under the terms of the Canada Labour Code, R.S.C. 1985, c. L-2, to substitute a lesser penalty in the case of discharge can generally involve the application of a number of mitigating circumstances.
Finally, the Union filed a response to the Railway’s written submission which was to the effect that the submission went substantially beyond what was appropriate in the circumstances. The Union concluded its position with the submission:
It is our considered opinion that the case should be (weighed) on the arguments and evidence presented to the hearing on May 28, 1997 and that the additional argument of the Railway should be ignored.
V - DECISION
I agree with the submission of the Railway that the Union failed to establish in terms of its preliminary position that the dismissal was in breach of the procedural requirements set out in the discipline provisions of the collective agreement. That issue was addressed by Professor Weatherill in the Gaffney Arbitration on pp. 5-6 as follows:
There is no expressed limitation (leaving only the implicit one that it be held within a reasonable time) on the holding of an investigation. It may be, in some circumstances, that a supplemental investigation would be proper. Once the investigation is closed, however, and the matter then sent to the appropriate officer for decision, such decision must be rendered "not later than 28 calendar days" from that date.
Here the Railway conducted three investigative hearings, all directed towards determining the facts with respect to the grievor’s continuing problems with alcohol. It cannot be said in the circumstances that the pattern and timing of those meetings was unreasonable in the sense contemplated by Professor Weatherill. Hence, I conclude that the Union failed to establish that the investigative stage of the proceedings was in breach of the discipline provisions of the collective agreement.
I reached a similar conclusion with respect to the Union’s procedural objection to the written submission made by the Railway following the hearing. The five-page submission was detailed and included authorities. However, it did not contravene any of the principles of a fair hearing in the sense that it did not place the Union at any disadvantage in the process. I note in particular that the procedural issue raised by the Union was raised for the first time in the hearing and that it met the definition of "surprise" as that term is used in adjudicative proceedings. It was open to the Railway in those circumstances to seek an adjournment to afford it time to prepare to meet the submission, both from a factual perspective and from the perspective of legal argument.
The Railway elected instead to proceed. It presented the substance of its position in the hearing, including its assertion that the procedural objection raised by the Union had been addressed and dismissed in other arbitrations. Hence, the written submission of the Railway was detailed but it did not raise any new points beyond those raised and responded to by the Union in the hearing. In the result, while the Union’s frustration may be understandable, it did not confront any disadvantage on the merits of its position.
In my view, the real issue in this dispute is whether the Railway succeeded in proving facts that constitute just cause for the dismissal of the grievor and, if so, whether the circumstances mitigate in favour of his reinstatement. In terms of that fundamental issue, it is conceded by the Union that the grievor, paraphrasing the dismissal letter, did in fact falsify his abstinence reports and did fail to remain abstinent in compliance with his commitment to the Railway. As noted, that conduct has been found to be just cause for dismissal in prior arbitrations in the industry. On June 14, 1996 Mr. Picher, in CROA Case No. 2753, affirmed the general principle that dismissal is not an excessive response to employees who breach reinstatement conditions.
In that case Mr. Picher dealt with a locomotive engineer who was dismissed for having been "in violation of the terms and conditions of employment for a protracted period of time". The dismissal arose out of complaints of three of the grievor’s associates that he was not remaining abstinent. Mr. Picher wrote the following comments:
In a recent award, CROA 2743, this Office had occasion to consider the consequences to an employee who entered into a similar personal contract with respect to not using marijuana. When he was discharged following a drug test which proved positive, the employee’s grievance was dismissed with the Arbitrator commenting, in part, as follows:
The record before me establishes, beyond any substantial controversy, that during the course of a periodic medical examination, which included a drug and alcohol test, Mr. O’Connell proved positive for cannabinoids, or marijuana. Following a disciplinary investigation, at which a copy of the drug test report in the possession of the Company was provided to the grievor, he was terminated for violation of the terms of his personal contract. This Office can see no responsible basis upon which to reverse that decision. The ability of employers and unions to make individual employees, whatever their personal problems, subject to strict conditions as a requirement of their continued employment is an instrument of great importance whose credibility should be sustained by employers, unions and arbitrators alike. In CROA 2632 the rationale for the reluctance of arbitrators to interfere with the consequences of the violation of such conditions was expressed in the following terms:
… To (interfere) would be tantamount to disregarding or amending the conditions agreed to between the parties, … As a matter of general policy, such settlements should be encouraged. As reflected in Canadian arbitral jurisprudence, arbitrators do not interfere with the terms of such settlements, as to do so would tend to discourage parties from resorting to them and, ultimately, undermine their utility as an important instrument for resolving disputes. …
Those extracts make it clear that a failure to comply with an abstinence agreement and the falsification of abstinence reports are viewed as serious acts of misconduct that can constitute just cause for dismissal. However, Mr. Picher’s decisions do not stand for the proposition that the appropriate penalty in every such case is dismissal. The facts in the cases cited by the Railway were in significant contrast to the facts present in this dispute with respect to the vital issue of their implication in terms of the viability of the employment relationship. The facts in those disputes disclosed relationships which were no longer viable. The same cannot be said about the facts proven in evidence in this dispute.
I digress to note that the 1996 evidence of rehabilitation adduced by the Union is not relevant to the issue of the viability of the employment relationship at the time of dismissal. As stated, the Union relied in that regard on the decision of Mr. Germaine in Westmin Resources. I agree with his reasoning insofar as it applies to arbitrations conducted under the legislation of British Columbia. However, I also accept that arbitrators whose jurisdiction emanates from the Canada Labour Code are bound by the decision of the Supreme Court of Canada in the Quebec Cartier case.
In terms of that decision, I repeat the comment made by Mr. Germaine on p. 32 in Westmin Resources in which he recites the following extract from Alcan Smelters, (1996) 55 L.A.C. (4th) 461. Mr. Germaine wrote as follows:
In (Alcan), in spite of the facts of Quebec Cartier, the arbitrator maintains that evidence of post-discharge rehabilitation is available to the arbitrator in accordance with the recognition by the Supreme Court that such evidence is "admissible if it helps to shed light on the reasonableness and appropriateness of the dismissal … at the time it was implemented."
In my view the weight of authority supports the principle that facts arising after a dismissal can be relevant to the issues of just cause or reinstatement if they can be seen to relate to the nature of the relationship at the time of dismissal. But, as stated, the evidence adduced by the Union in these proceedings with respect to 1996 does not meet that test. Initiatives taken by the grievor in 1996 will not support any inference as to the viability of the employment relationship at the time of dismissal.
But, on the same point, the Union presented facts that do have relevance to the state of the relationship at the time. Those facts do support an inference that the relationship was quite capable of being restored. Conversely, the facts relied on by the Railway do not support the conclusion that the employment relationship at the time of dismissal was such that the grievor could not be expected to meet and maintain an acceptable standard of conduct and work performance. In my view, that is the test that should be applied when reviewing a dismissal imposed in response to alcohol-related misconduct. Alcoholism is accepted as a being a disease and the remedial approach to discipline expected of employers by arbitrators requires a conclusion based on proven facts that the employment relationship is no longer viable.
The authorities relied on by the Railway support that conclusion. See Brewers Warehousing and United Brewers Warehousing Workers, (1984) 16 L.A.C. (3d) 84 (MacDowell) and Raven Lumber Ltd. and IWA, (1986) 23 L.A.C. (3d) 357 (Munroe). On p. 96 of Brewers Warehousing, Mr. MacDowell set out the factors to be considered in a review of a dismissal imposed as a result of alcoholism or conduct arising as a result of alcoholism. He wrote:
(I)t is useful to consider the factors which other arbitrators have considered in determining whether an employee discharged for an alcohol-related offence should or should not be reinstated. It appears that a number of factors figure into the calculus, including: the nature of the event giving rise to the discharge; the grievor’s prior record; the likelihood of successful rehabilitation; and the grievor’s years of satisfactory service (on the assumption that with appropriate treatment the grievor’s illness can be overcome and he can be restored to his former productive capacity). Employees with long service have an investment in their job which should not lightly be erased.
I repeat, in a typical case of dismissal based on alcohol- related misconduct, the viability of the employment relationship is measured in terms of the implications of the misconduct and the likelihood that it will cease or continue. In each case, regardless of the nature of the misconduct, the underlying question is whether the employee’s alcoholism can be considered at the time of dismissal to be capable of being controlled. Post-dismissal facts can be considered, but only in terms of projecting circumstances as they existed at the time of dismissal.
Here there was no alcohol-related misconduct except for the grievor’s breaches of the abstention agreement. Absent from the facts in this case were any facts that the grievor was abusing alcohol in any sense related to the performance of his work. In response to the question of whether there was an indication that the employment relationship could be rehabilitated, there was, as pointed out by the Union, a paucity of evidence to indicate that the relationship had ever foundered. Hence, I conclude that it is an appropriate case in which to exercise the discretion vested in arbitrators in s. 60(2) of the Canada Labour Code.
The facts mitigating in favour of reinstatement include the grievor’s work record, the absence of any work-related misconduct arising from his alcohol problem and the absence of evidence in these proceedings that the lapse that led to his dismissal was anything other than what was described by the grievor. That is, it was a temporary condition triggered by a severe family trauma and that it was brought under control. In short, the facts did not refute the conclusion that the grievor was quite capable of meeting and maintaining an acceptable standard of work performance and conduct in the future.
However, the facts do not support an award of compensation. The grievor committed breaches of his abstinence agreement and the Railway was justifiably concerned about the implications of that misconduct in view of the grievor’s safety sensitive position and the effects alcohol addiction could have on his work performance. The grievor met and answered those concerns in the hearing and thus earned his reinstatement. But, as indicated, compensation is inappropriate in the circumstances. In the result, the grievor is to be reinstated with his seniority intact but without compensation.
DATED at the City of Prince George, in the Province of British Columbia, this 12th day of August, 1997.
(signed) H. ALLAN HOPE, Q.C.