GSB# 2005-2409
UNION# OLB578/05
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Cahill)
Union
- and -
The Crown in Right of Ontario (Liquor Control Board of Ontario)
Employer
BEFORE
Nimal V. Dissanayake
Vice-Chair
FOR THE UNION
Kourosh Farrokhzad Barrister and Solicitor
FOR THE EMPLOYER
Dan Palayew Ogilvy Renault LLP Barristers and Solicitors
HEARING
January 9 and August 1, 2006.
Decision
This decision relates to a discharge grievance dated October 18, 2005 filed by Mr. Patrick Cahill (“grievor”). The grievor had been previously discharged by the employer on November 13, 2003. He grieved, and following a hearing before this Board, he was reinstated subject to certain strict terms akin to a last chance agreement. (See decision dated August 11, 2005 in GSB File # 2003-3099). Pursuant to that decision the employer reinstated the grievor in the position of Manager of a “D” LCBO Store in Cardinal, Ontario. Apart from the location, that position was the same as the one he had occupied at the time of his discharge. Following a three week retraining, he started at the Cardinal Store on September 13, 2005. He worked on the 13th, 14th, 15th and 16th and then was off on bereavement leave and an approved leave of absence without pay till October 4th, 2005, because of the death of his mother overseas. Upon his return he worked on October 5th, 6th and 7th without incident. However, he was discharged due to events on October 8th, 2005, his eighth scheduled shift following his reinstatement.
It suffices to note that the parties are in agreement that as a result of the terms of reinstatement the grievor was under, if the employer had just cause for any discipline arising out of the grievor’s conduct on October 8, 2005, his discharge must be upheld.
The facts are not in dispute to the following extent. The grievor was scheduled to commence his shift on Saturday October 8th, 2005 at 9:00 a.m. and to get the Store ready for opening at 10:00 a.m. He was scheduled to work alone till 1:00 p.m., at which time two casual employees were to start their shift. Being the Saturday of the Thanksgiving long weekend, that day has historically been one of the three busiest days of the year for the LCBO. The grievor did not report to work at 9:00 a.m. as scheduled. Around 10:30 a.m. the manager of a deli-store located in the same mall as the liquor store noticed that customers had gathered outside the liquor store, which was still closed. He drove over to the home of one of the casual employees, Ms. Dominique Reid, and reported that the liquor store had not opened yet and that customers were gathered at the entrance. Ms. Reid, realizing that it was the grievor’s responsibility to open the store that day, called him at his home. Ms. Reid’s call woke up the grievor, who was still asleep. Ms. Reid immediately rushed over to the store, still in her pyjamas, and arrived at the store at 10:47 a.m.. Shortly after, at approximately 10:50 a.m. the grievor arrived. Thus, there is no dispute that the grievor was late for his shift by approximately one hour and fifty minutes. The evidence is also uncontradicted that the grievor did not at any time notify management of his lateness.
The dispute between the parties, and the issue for determination by the Board, is as to whether the grievor’s failure to report on time for his shift on October 8th, and his failure to notify management, gave the employer just cause to impose any discipline on the grievor.
The union takes the position that in the particular circumstances there was no just cause for any discipline because the grievor’s lateness on October 8th was “innocent”. The union relied on the fact that the grievor had suffered a work related injury back in December 1991 and was diagnosed as suffering from a degeneration of the spine, a condition called spondylosis. In April 1993 he returned to work subject to permanent restrictions approved by the Workers Safety Insurance Board, to avoid heavy lifting, pushing or pulling and to avoid repeated or sustained bending or twisting. The union claimed that the grievor’s failure to report for his shift, and his failure to notify his absence, were directly related to his disability, i.e. his back problem. Therefore, it was argued that his absence was innocent. Authorities were cited to support the legal proposition that an employer has no just cause to discipline an employee for innocent absenteeism.
The grievor testified as to the reasons for his failure to report on time for his shift on October 8th and for his failure to notify management. On the former issue, in chief, he testified that on the 7th of October he scheduled himself for a shift from 11:45 a.m. to 8:15 p.m.. During that shift he operated the cash. After work, he arrived at home around 9:00 p.m.. When asked when he first felt pain, the grievor testified that it was around 11:30 p.m. or midnight, when he had laid down in bed. He stated that the pain he experienced at the time was “from standing” during the shift. He stated that he could tolerate the pain, but the tingling bothered him. Then the following exchange occurred between union counsel and the grievor:
Q: What did you do?
A: I took 2 Tylenols and sat up for a while. Then I went And lay down. But it was the same thing. So I took 2 more.
Q: when?
A: 45 minutes later
Q: What was the effect?
A. Nothing.
Q. When did you fall asleep?
A: The last time I recall, the clock was at 4 or 4:15 a.m.
The grievor testified that normally he took Truly, Roboxacet or Roboxilin for pain. However, that night all he had was Tylenol. He testified that he did not expect to need any medication, that he did not expect that “the pain would creep up on me”. The grievor’s next recall was hearing the telephone ring around 10:30 a.m.. When he answered, Ms. Reid asked him if he planned to go to work. He asked her what time it was and told her that he would go right away. He showered and left as fast as he could.
Union counsel asked the grievor why he had overslept. The grievor testified that he did not hear the alarm. He said “I was sedated. I was drugged out.”
Under cross-examination, the grievor testified that on October 7th after his shift he went home directly, had a snack, and went to bed by 11:30 p.m.. Then the following exchange took place:
Q: Did anything happen that night?
A: I couldn’t get to sleep because my leg was bothering me.
Q: Not prior to that?
A: Just a bit.
Q: What did you do?
A: I really couldn’t do a lot. I wasn’t prepared for a Recurrence. I was in disarray in Cardinal.
Q: What did you do?
A: I took a Tylenol.
Q: Then?
A: I waited for the pain to go away trying to fall asleep.
Q: Did you eventually fall asleep?
A: Yes.
Q: When your counsel asked you in chief you said you took 2 Tylenols – was it one or two?
A: One immediately and probably one shortly after. I then Kept on taking.
Q. In chief you said something very different – You just said you took one and kept on taking?
A: Probably I took through the whole evening.
Q: You were asked this question first in the NOID, then Pam McGregor asked you at the meeting, and then you were asked the same question in chief – what is your answer?
A: Probably I took 5 over the course of the evening.
Q: When did you take the last Tylenol?
A: About 3:30.
Q: So now you say between 12:30 and 3:30 you took 5?
A: Yes.
Q: But in chief you clearly said you took 2 Tylenols, sat up for a while, and 45 minutes later you took 2 more - which is correct?
A: Then its 4.
Q: In chief you said you were sedated and drugged out – do you recall that?
A: Yes.
The grievor had been issued a Notice of Intended Discipline (NOID) dated October 12, 2005 in relation to his conduct on October 8th, 2005. In his response to the NOID, the grievor explained that he had experienced a sharp tingling and numbness in his leg the night before. He wrote “It has been a long time since this has occurred and I was not 100% prepared for the return of my ongoing permanent disability that I have acquired after the lifting with my career with the LCBO”. The grievor then wrote: “On the night before the day in question, I was popping Tylenols trying to stop the sharp tingle in my leg to fall asleep and to no avail I was up most of the night”.
During his examination in chief, the grievor was asked whether he contacted the District Manager, Ms. Karen Richardson-Norris about his failure to report on time. He replied, “No. Dominique told me that she had been informed already by someone at the Iroquois Store. After Dominique left I was pretty steady and also I was not 100% compatible with the cash register still”.
Under cross-examination, the grievor agreed that during the 3 week training he received upon his reinstatement, he was reminded of the requirement to report to his supervisor of any absence. The grievor acknowledged that he was aware of the requirement.
The grievor further agreed that he was late for his shift by about one hour and 50 minutes. He was asked whether he knew of the policy about what a store manager’s obligation was in that situation. The grievor replied, “Yes. To notify the supervisor”. He was asked whether he notified his supervisor as per that policy. The grievor responded that he did not. Then the following exchange occurred:
Q: Why not?
A: She had been already notified. Dominique said that a neighbouring store phoned the District Manager that the store was not open.
Q: Did she say that the Store spoke to the District Manager?
A: That they left a voice-mail.
Q: So although you knew the procedure, you thought that was sufficient?
A: I was at the store working.
Q: Answer my question – even though you knew the procedure, You thought it was sufficient that someone had left a voice-mail for Karen?
A: Yes I did.
The evidence indicates that at a meeting with management held on October 17, 2005, the grievor was asked whether he attempted to call anyone after he was woken up on October 8th by Ms. Reid’s call. He replied that he did not, that he got up, showered and went to work. When asked whether he called anyone once he got to work, he replied that he did not, because Dominique had said that “Karen already knew”.
Ms. Reid also testified on this issue. She testified that the grievor had arrived shortly after she had opened the store. She told the grievor “that some people had gone to the Iroquois Liquor Store and told them that our store had not opened, and that someone from the Iroquois Store had called our District Manager. I asked him if he had called Karen. He said “Oh. I am sure she will be calling me”.
Based on the evidence before me there are two distinct allegations of wrong-doing on the part of the grievor. First, that he reported for his scheduled shift approximately one hour and fifty minutes late, and second, that contrary to the procedure he was admittedly aware of, the grievor failed to notify his manager about his lateness. Union counsel argued that both infractions were non-culpable and innocent, because they were “directly related to the permanent disability the grievor suffered from”. Counsel thus submitted that this case come within the category of “innocent absenteeism”. It therefore follows, he submitted, that there was no just cause for any discipline arising out of innocent absenteeism.
While the union’s argument is creative, the evidence before me does not support that argument. The fundamental flaw in the union’s argument is that the evidence does not establish any link between the grievor’s disability and his infractions.
Employer counsel urged me to conclude that the grievor’s claim that he suffered a recurrence of his disability on the night in question was a fabrication, or at least an extreme exaggeration. Counsel pointed out that the injury in question took place some 14 years earlier. The employer at the time returned the grievor to work within his medical restrictions. For some 12 years since then, no medical evidence of the status of his disability had been provided to the employer. Prior to his first discharge, and since his reinstatement, the grievor had routinely performed cashiering functions as a “D” store manager. At no time did he complain that those duties caused him any problems or that they were outside his restrictions. Since his reinstatement at the Cardinal Store, he used his authority as manager to schedule the casual employees to do the heavy work involved on load days, while he restricted himself to cashiering duties. On October 7th, he made no complaint of discomfort during the shift. Ms. Reid testified that she did not notice him to be in any discomfort or see him take any medication. All he did that day was cash, and he worked to the end of his shift.
Counsel drew my attention to the evidence that following his first discharge, the grievor had worked in the construction industry, cutting out walls. Since his second discharge, he had been employed doing painting. He had done this physical work without any complaint and without suffering a recurrence of his disability. Counsel also pointed out that the grievor had claimed that he had pain and tingling in his leg to such extent that he did not fall asleep till after 4:00 a.m.. He also had claimed that the Tylenol he took was ineffective. Yet he did not at any time even attempt to contact a doctor about the alleged recurrence of his disability. The only action he took was to buy some over the counter medication on the recommendation of a pharmacist, and even that he did only on Saturday night, after he had completed his shift and returned to Ottawa. Moreover, on October 8th Saturday, once he reported to work, he carried out his functions with no problem or complaint, and completed his shift. Employer counsel submitted that all of this evidence suggests that the grievor’s story was a fabrication.
While I agree that the evidence as a whole casts doubt on the grievor’s claim of a recurrence, for purposes of this decision it is not necessary to make a finding in this regard. Assuming that he did have a recurrence as he claims, that by itself does not assist the union’s case. The grievor is not claiming that he was unable to report to work on time or to notify management because he was in pain. His explanation is that his infractions were a result of him getting sedated and drugged out as a result of the medication he took, which caused him to sleep through the alarm. In other words, he claims that he did not report for his shift on time and did not report to management, not because of the recurrence of his disability, but because he had been sedated and did not hear the alarm. Had he heard the alarm, there was nothing that would have prevented him from reporting to work. In fact, once he was woken up by the telephone call, he did report to work and even completed his shift. In light of that lack of a connection between the alleged infractions and the grievor’s disability, I find that the principles and authorities relating to the duty to accommodate and innocent absenteeism relied upon by the union are irrelevant. The relevant issue is whether the evidence establishes that the grievor had in fact been sedated by the Tylenol he took that night and if so, whether that renders his failure to report to work on time and his failure to notify management, non-culpable.
On a review of the evidence before me, I find the grievor’s claim that he was sedated as a result of the Tylenol he took that night to be not credible. I have set out the evidence with regard to the inconsistent statements the grievor had made as to the quantity of Tylenol he took that night. The grievor made different assertions at different times, of the amount of Tylenol he took. His claims ranged from taking 4 Tylenols between 12:30 and 3:30 a.m. to “kept on taking Tylenol all evening”. He did not explain his conflicting claims, but when confronted under cross-examination merely stated, “OK. Then it is 4”. His testimony in this regard was far from credible. He demonstrated that he was prepared to say anything that he felt was in his best interests at the time.
Even if the Board ignores the credibility issues, and accepts the final position the grievor took during cross-examination, that he took 4 Tylenols between 12:30 a.m. and 3:30 a.m., the evidence before me does not support a finding that as a result the grievor would get “sedated and drugged out” as he claimed. The employer filed in evidence an excerpt from “The Compendium of Pharmaceuticals and Specialties – The Canadian Drug Reference for Health Professionals” 2005, published by the Canadian Pharmacists Association. In the section under Tylenol, certain adverse effects are noted. However, a sedating effect or even drowsiness is not listed as a possible effect of Tylenol. I find that the grievor’s claim to have been “sedated and drugged out” as a result of taking 4 Tylenols over a period of 3 to 4 hours to be unbelievable. In the face of the scientific evidence adduced by the employer, and in the absence of any evidence from the union that Tylenol, even if taken in large dozes, can possibly have such a sedating effect, I do not accept the grievor’s explanation for his sleeping in.
The difficulties with the union’s case do not end there. Even if I had accepted that the grievor had been sedated as a result of the Tylenol he took, and that it had caused him to sleep through the alarm, that still does not explain his failure to notify management. There is no question that the grievor woke up around 10:30 a.m.. At that time he would definitely have been aware that he would not meet his obligation to report for his shift at 9:00 a.m. He was also aware that the policy required him to notify management of his lateness at that time. He did not do that. Even if the Board accepts that the grievor was more concerned about rushing to open the store as soon as possible, there is no explanation as to why he did not call his manager once he got the store opened. He did not do that either. From 10:50 a.m. he carried on as if nothing had happened.
The only explanation the grievor provided for his failure to notify had nothing to do with his alleged recurrence or his alleged sedation. He did not comply with his obligation to notify his manager because he had multiple hear-say information that the District Manager had already been informed by some unidentified person that the liquor store had not opened. This was based on the fact that Ms. Reid had told him that some unidentified customer had told some unidentified person at the Iroquois Liquor Store that the Cardinal Store had “not opened”, and that someone from that store, again not identified, had in turn left a voice-mail for the District Manager. The grievor had no information as to the content of that voice-mail, other than that it said that the Cardinal Store had not opened. Yet he decided that because someone else had left that voice-mail for the District Manager, that relieved him from his obligation to notify. Particularly considering that the grievor was the store manager with responsibility for two casual employees, I find that the grievor’s casual attitude towards his obligations to be unacceptable. The evidence is that Ms. Reid, even though a casual employee, understood that the grievor was required to notify management of his lateness. Indeed, as soon as the grievor arrived at the store, she reminded him of that obligation to call the District Manager. As part of the retraining he received upon his reinstatement the grievor had been reminded just a few weeks earlier that he was required to notify his District Manager if he was not at the store when he was supposed to be on shift. Yet, when Ms. Reid asked him whether he had called the District Manager his only response was to say “Oh! I am sure she will be calling me”.
In my decision dated August 11, 2005, I stated that I was reinstating the grievor with some hesitation. I made it very clear that the grievor was getting one last chance to salvage his career with the LCBO and that misconduct giving rise to just cause for any discipline, would result in his discharge without recourse. The grievor testified under cross-examination that he had read the decision and understood that. Yet, the conclusion is inescapable that after just 8 shifts following his reinstatement, he gave the employer cause for discipline, by his failure to report for his shift on time, and by failing to notify management as required by the policy he was admittedly aware of. His explanations for the infractions are not believable and are not reasonable. His conduct was culpable and gave cause for discipline.
Considering the terms of reinstatement the grievor was under at the time therefore, I have no other choice but to uphold the employer’s decision to discharge him.
Accordingly, the instant grievance is hereby dismissed.
Dated this 14th day of August, 2006 at Toronto, Ontario