GSB#2007-3507

UNION#2007-0164-0028

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (MacLeod)

Union

• and -

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

Employer

BEFORE

Michael V. Watters

Vice-Chair

FOR THE UNION

Ron Lebi Counsel Koskie Minsky LLP Barristers and Solicitors

FOR THE EMPLOYER

Gordon Fitzgerald Counsel Liquor Control Board of Ontario

HEARING

June 18, August 6, and September 12, 2008.

Decision

1This proceeding arises from the Employer's decision to terminate the grievor's employment as a consequence of an allegation that he threatened a fellow employee, namely Mr. Tim Goulden, on November 8, 2007.

2Hearings were held in this matter of June 18, August 6 and September 12, 2008 in London, Ontario. At the conclusion of closing argument on the last day of hearings, both counsel agreed that, if possible, this Vice-Chair should provide a bottom line decision on the grievance with detailed written reasons to follow.

3I have now had the full opportunity to review and consider the evidence, argument and authorities presented and relied on by the parties to this dispute. Having done so, my Decision is as follows:

(i) The grievor engaged in threatening and intimidating behavior with respect to Mr. Goulden on November 8, 2007. This misconduct justified a significant disciplinary response on the part of the Employer.

(ii) Nevertheless, the grievor’s to be reinstated to his former position within five (5) working days of this Decision without compensation but with no loss of seniority. The time period between the grievor's termination of employment to the date of reinstatement shall be considered as an unpaid suspension.

(iii) The grievor's reinstatement is conditional upon his proof of continued treatment by his psychiatrist. Such proof to be provided in writing, on a monthly basis, to the Director of the London Retail Service Centre until such time as the grievor's psychiatrist determines that he no longer requires further treatment.

(iv) The grievor's reinstatement is further conditional upon proof that he has availed himself of all appropriate resources offered under the Employee Assistance Program in respect of anger management issues. Such proof to be provided in writing, on a monthly basis, to the Director of the London Retail Service Centre until such time as the treating professional determines that the grievor no longer requires further assistance.

(v) The grievor will be automatically terminated, without the ability to grieve or otherwise challenge his termination, if the terms set out in paragraphs (iii) and (iv) are not met.

(vi) The grievor's reinstatement is further conditional upon the grievor not engaging in or participating in harassment, discrimination, intimidation, physical assault, or any other conduct prohibited by the Workplace Intimidation And Violence Prevention Policy. If the grievor engages in any of the aforementioned misconduct, 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 harassment, discrimination, intimidation, physical assault, or contravention of the Workplace Intimidation And Violence Prevention Policy. This condition shall remain in effect for a period of two (2) years from the date of this Decision.

(vii) This Decision is intended as the last and final opportunity for the grievor to address and remedy his issues with anger management, or any other problem, which adversely impacts his ability to properly interact with his fellow employees or with management of the London Retail Service Centre.

4I remain seized with respect to the implementation of this Decision. Written reasons will follow in due course.