GSB# 2004-1316

UNION# OLB420/04

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Liquor Boards Employees’ Union (McLeod)

Grievor

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Gerry Lee

Vice-Chair

FOR THE UNION

Dave Loney Grievance Officer Ontario Liquor Boards Employees’ Union

FOR THE EMPLOYER

Pat Houlihan Consultant Liquor Control Board of Ontario

HEARING

August 6, 2004.

Decision

The parties referred this grievance to mediation/arbitration in accordance with Article 22.11 and Appendix 2 of the Collective Agreement.

At the outset of the hearing, the parties agreed that I had jurisdiction to deal with this matter and they requested that I issue a “without precedent” decision with no reasons.

The employer issued the grievor with a letter dated July 9, 2004, informing him that his employment was terminated because he was “….observed on three different occasions of intimidating, verbally and physically assaulting employees of the London Retail Service Centre”. In ordinary circumstances, this discharge would be upheld. However, given the submissions of the parties, the grievor’s willingness to seek counselling and in view of his clear disciplinary record, this is an appropriate case for reinstatement on strict terms. Accordingly, the grievance is allowed subject to the following terms:

1. The Grievor is to be reinstated to his former position within five working days of this decision, with no loss of seniority and no back pay, providing the grievor submits written documentation to the employer that he has been attending sessions with his EAP Psychotherapist in order to deal with anger management issues.

2. The grievor’s reinstatement is conditional upon his proof of continual attendance in the aforementioned anger management counselling sessions. Such proof to be provided, in writing, to the Director of the London Warehouse on a monthly basis until such time as the Grievor’s Psychotherapist determines that he no longer requires further treatment.

3. The time period between the grievor’s termination of employment to the date he is reinstated shall be considered a suspension.

4. The Grievor will be automatically terminated, without the ability to grieve or otherwise challenge his termination, if the terms set out in paragraph 1 and 2 above are not met.

5. The Grievor’s reinstatement is conditional upon the Grievor not engaging in or participating in harassment, discrimination, intimidation, or physical assault in the workplace. If the Grievor engages or participates in harassment, discrimination, intimidation or physical assault, he will be automatically terminated without the ability to grieve or otherwise challenge his termination, except to dispute the facts upon which the termination was made. The Grievor is also entitled to challenge whether or not the facts constituted intimidation, harassment, discrimination, or physical assault. This condition shall remain in effect for a period of two years from the date of this award.

6. Prior to his reinstatement, the Grievor will provide the employer with a written apology for his misconduct, such letter to contain the grievor’s promise that he will not, in future, engage in any further misconduct of the type that led to his termination. This apology will be posted at the London Warehouse for one month following his reinstatement.

I remain seized with respect to the implementation of this award.

Dated at Toronto this 9^th day of August 2004.