GSB#2012-3022

UNION#2011-0288-0018

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Anagnostopoulos)

Union

• and -

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

Employer

BEFORE

Michael V. Watters

Vice-Chair

FOR THE UNION

Natalie DeHaney-Stewart Ontario Public Service Employees Grievance Officer

FOR THE EMPLOYER

Adrienne Couto Liquor Control Board of Ontario Counsel

HEARING

September 15, October 15, December 16, 2015; June 22, October 20, October 26, 2016

Decision

1At the outset of this proceeding, the parties filed the following Agreed Statement Of Facts.

“The LCBO and the Union (hereinafter “the Parties”) agree to the following facts for the purposes of the hearing of the above-noted matter and without prejudice or precedent to other grievances and/or hearings. The Parties agree that additional information may be presented at the hearing by viva voce evidence.

I. The Grievor

1. The Grievor commenced employment with the LCBO in or around September 7, 2004 as a casual customer service representative (“CSR”).

2. At all material times the Grievor was a bargaining unit employee represented by OPSEU and the terms and conditions of her employment were governed by a collective agreement between the LCBO and OPSEU. A copy of the collective agreement for the term April 1, 2013 to March 31, 2017 is attached hereto as Exhibit 1 (the “Collective Agreement”).

II. The Termination and Grievance

3. By letter dated September 20, 2011, the LCBO terminated the Grievor’s employment for the reasons set out in that letter. A copy of the letter of termination is attached as Exhibit 2.

4. The Grievor subsequently filed a grievance with respect to the termination of her employment. A copy of the grievance, dated September 22, 2011, is attached as Exhibit 3.

III. Background

a. The Grievor’s Hiring

5. At all material times, the Grievor was employed by the LCBO as a casual CSR. Upon her application for employment, the Grievor completed and signed a Terms and Conditions of Casual Employment form on August 30, 2004 (attached as Exhibit 4), which describes the general nature of her position. The general terms of her employment upon hiring was also set out in a letter of employment to the Grievor dated September 7, 2004 (attached as Exhibit 5).

6. The Grievor commenced work at the LCBO’s retail store located at 236 Guelph Street, Unit B, Georgetown, Ontario (“Store 156”). Effective January 4, 2010, until the date of termination, the Grievor was assigned to the LCBO’s retail store located at 256 Queen Street, Acton, Ontario (“Store 297”) (letter of transfer attached as Exhibit 6).

7. From the Grievor’s date of hire to the Grievor’s date of termination, the following District Managers were responsible for the LCBO’s retail stores located in the Dufferin/Peel area, including Stores 156 and 297;

1. Jeff Misener from 2004-2007;

2. John Wilkinson from 2007-2010; and,

3. Josie Peirce from 2010-2014.

b. Disclosure of Spousal Abuse and Leave of Absence

8. In or around September, 2006, it was alleged that the Grievor had consumed alcohol in the workplace. At a pre-disciplinary meeting on September 28, 2006, the Grievor disclosed that she had been in an abusive relationship with her husband for approximately twenty years. The Grievor further stated that she had turned to alcohol for help when she had a “bad” day, but denied having an alcohol abuse problem.

9. The incident of September, 2006 resulted in disciplinary action being taken against the Grievor.

10. Subsequent to disciplinary action being taken, the Parties ultimately agreed that the Grievor would be considered to be on a leave of absence effective October 25, 2006, during which time she would undergo an independent medical assessment for the purposes of obtaining treatment recommendations for alcohol and spousal abuse and would comply with any such recommendations.

11. On August 17, 2007, the Grievor attended an assessment with Dr. Rhona Nemeth, Ph.D., C. Pscyh of the University Health Network, Toronto, paid for by the LCBO. On or about August 23, 2007, the LCBO received a Report from Dr. Nemeth. A copy of the Report is attached as Exhibit 9 (the “Report”).

12. As per the Report, Dr. Nemeth concluded that the Grievor had a history of spousal abuse and dependence on alcohol, but based on her statements that she had not consumed alcohol at work and had not had a drink in the past year, that her alcohol abuse was in remission. Dr. Nemeth advised that the Grievor was ready to leave her husband and recommended that the Grievor attend individual psychotherapy and group treatment for victims of spousal abuse.

13. Further to Dr. Nemeth’s recommendations, the Grievor subsequently attended, at the LCBO’s expense, individual counselling sessions through Guelph Wellington Care & Treatment Centre for Sexual Assault and Domestic Violence, and returned to work effective April 18, 2008.

14. The Parties agreed that, upon her return to work, the Grievor would actively participate in any further post-return to work treatment programs. Following completion of the above-noted individual sessions, it was recommended that the Grievor attend group treatment sessions, but she did not do so.

c. Reports of Spousal Abuse Following Return to Work

15. Following her return to work in April, 2008, the Grievor reported further incidents of spousal abuse.

16. In or around June, 2008, the Grievor advised her manager that she would not be reporting for her shift as her husband punched her in the nose. By letter dated June 12, 2008 (attached as Exhibit 10), the LCBO strongly encouraged her to contact her counsellor at her treatment program and offered her flexibility in her scheduling at work while she addressed the matter. The Grievor did not request any accommodation at that time.

17. On or about Saturday, March 21, 2009, the Grievor called the store and advised that she would not be able to report to work indicating that her husband had hit her again and she had noticeable bruising. She was urged to get help and the employees phoned the police to advise them of the situation. The Grievor was subsequently absent from work on Saturday, March 21, 2009 and Monday, March 23, 2009. A copy of the Incident Report with respect to this matter is attached as Exhibit 11.

18. On or about April 9, 2009, Mr. Wilkinson and Shelley MacIntyre (sic.), Human Resource Advisor, met with the Grievor to discuss the incident of March 21, 2009, as well as the Grievor’s attendance since her return to work. At such meeting, the Grievor advised that she was still experiencing spousal abuse and that the individual counselling sessions for spousal abuse that she had been attending had finished in September/October 2008. She acknowledged that she had been provided with information about the availability of domestic violence group support sessions, but stated that she did not pursue this as she had no way to get to the sessions, she was working at Walmart as well as the LCBO and her mother had passed away. The Grievor was reminded about the availability of the Employee Assistance Program (“EAP”), provided with a pamphlet regarding the EAP, and encouraged to contact her family physician for assistance and referral to appropriate services. By letter dated April 17, 2009 (attached as Exhibit 12), the LCBO confirmed its discussions with the Grievor at the April 9, 2009 meeting and further offered flexibility with respect to the Grievor’s schedule in order to address this matter. The Grievor did not make such request or request any other accommodation.

19. On December 29, 2010, the police were called to the store as a result of the Grievor reporting an incident of domestic violence. The LCBO was advised that criminal charges and a restraining order were filed against the Grievor’s husband and that he was no longer residing with the Grievor. The Grievor did not work her scheduled shift on December 29, 2010. This incident is described in the letter to the Grievor dated February 25, 2011 (attached as Exhibit 19). As per such letter, the LCBO advised the Grievor that it was prepared to transfer the Grievor to another store and to develop a response plan should the Grievor’s husband attend the store. The Grievor did not request a transfer or request any other accommodation with respect to her domestic situation.

d. Record of Counsel and Discipline

20. Following her return to work, the Grievor also received the following counselling and discipline with respect to failing to report to work as scheduled, failing to provide notification of lateness or absense, failing to provide satisfactory medical documentation supporting absences, and reporting to work under the influence of alcohol or unit for duty. Such counselling and discipline was not grieved.

21. On or about October 20, 2008, the Grievor’s Store Manager verbally counselled the Grievor with respect to her failure to report for work and failure to provide notification of her absence from her shift of Friday, October 17, 2008. The Manager’s notes with respect to such counselling is attached as Exhibit 13.

22. By letter dated February 10, 2009 (attached as Exhibit 14), the Grievor received a letter of counsel with respect to her failure to report for work and failure to provide notification of her absence from work on Saturday, January 31, 2009.

23. By letter dated July 15, 2009 (attached as Exhibit 15), the Grievor was issued a letter of reprimand with respect to her failure to report for work and failure to provide notification of same for her scheduled shift of Friday, June 26, 2009.

24. By letter dated July 29, 2009 (attached as Exhibit 16), the Grievor was issued a letter of reprimand with respect to her reporting for work late and failing to provide notification of same for her scheduled shift of Tuesday, July 21, 2009.

25. By letter dated January 21, 2010 (attached as Exhibit 17), the Grievor was issued a letter of reprimand for reporting late for work, under the influence of alcohol and unfit for duty on Friday, December 11, 2009.

26. By letter dated August 19, 2010 (attached as Exhibit 18), the Grievor was issued a one (1) day suspension with respect to failing to report for work on time and failing to provide notification of same for her scheduled shift on Thursday, July 29, 2010.

27. By letter dated February 25, 2011 (attached as Exhibit 19), the Grievor was issued a two (2) day suspension for the reasons set out in that letter including being absent from work without authorization and without proper notification and attending at work under the influence of alcohol and unfit for duty. In such letter, the Grievor was also directed to provide medical documentation dated the same date as the absence in respect of any further absences.

28. By letter dated March 16, 2011 (attached as Exhibit 20), the Grievor was issued a three (3) day suspension for her absence from work without prior notification on Thursday, March 3, 2011.

29. By letter dated April 18, 2011 (attached as Exhibit 21), the Grievor was issued a three (3) day suspension for failing to provide notification of her absence and failing to provide medical documentation satisfactory to the LCBO in respect of her absence from work on Friday, April 1, 2011.

30. By letter dated May 17, 2011 (attached as Exhibit 22), the Grievor was issued a three (3) day suspension for failing to provide medical documentation satisfactory to the LCBO in respect of her absences from work on Saturday, April 23 and Tuesday, April 26, 2011.

31. By letter dated June 13, 2011 (attached as Exhibit 23), the Grievor was issued a five (5) day suspension for failing to provide medical documentation satisfactory to the LCBO in respect of her absence on Thursday, May 12, 2011 and failing to provide notification in respect of her absences on May 17, 19 and 20, 2011.

e. LCBO’S Further Attempts to Accommodate the Grievor

32. As detailed in the letters of discipline dated January 21, 2010, February 25, 2011 and June 13, 2011 (attached as Exhibits 17, 19 and 23, respectively), when the Grievor commenced reporting to work under the influence of alcohol and unfit for duty, the LCBO met with the Grievor prior to such discipline being issued and asked whether the Grievor had an alcohol problem. In such meetings, and as confirmed in the afore-noted letters, the LCBO advised that should the Grievor acknowledge that she has an alcohol problem or addiction, it would accommodate same and assist in facilitating treatment. The Grievor was also advised that the LCBO was prepared to assist her in taking steps to deal with her domestic situation and she was reminded of the availability of the EAP. The Grievor, however, denied that she had an alcohol problem or addiction and did not request any accommodation either in respect of an alcohol problem or her domestic situation.

33. Subsequent to the letter of discipline dated June 13, 2011, the LCBO met with the Grievor and her union representative on June 17, 2011 to discuss her absences from work from June 13 to 16, 2011, at which time the Grievor advised that she was absent due to being raped in an alley by a stranger. The LCBO, in good faith and on a without prejudice basis, advised that although it did not believe her explanation, it would not issue discipline. Instead, the LCBO implored her to get professional help in dealing with her issues and warned her that her employment was in serious jeopardy if her misconduct continued. Details of the absences from June 13 to 16, 2011, as well as the subsequent meeting with the Grievor, are set out in a letter to the Grievor dated June 21, 2011 (attached as Exhibit 24).

IV. Events Leading to the Grievor’s Termination

34. On July 14, 2011, the Grievor was scheduled to commence work at 10:00 a.m. The Grievor did not report to work at the start of her shift. The Store Manager’s notes with respect to same is attached as Exhibit 25.

35. At approximately 4:40 p.m. on July 14, 2011, the Grievor attended at the store dressed in her LCBO work attire and sat down in the office chair while the Store Manager was in the office talking to another store. She did not say anything but soon thereafter left stating she could not wait any longer. The Store Manager’s notes with respect to same are attached as Exhibit 26.

36. By letter dated July 14, 2011 (attached as Exhibit 27), the Grievor was advised that disciplinary action may be taken with respect to her absence from work on July 14 and her failure to provide notification in respect of same. The Grievor was asked to provide a written response within three (3) calendar days from receipt of the letter, explaining her conduct.

37. The Grievor provided a medical note dated July 14, 2011 (attached as Exhibit 28) advising that she was unable to attend work on July 14, 2011 for medical reasons.

38. The Grievor was scheduled for work on July 15, 2011. Shortly after she reported for work, the Grievor’s manager assessed her as being under the influence of alcohol and/or unfit for duty and sent her home as a result of same. Another CSR, Jessica Fellin, witnessed this event. The Store Manager’s notes and Jessica Fellin’s notes with respect to same are attached as Exhibits 29 and 30, respectively. The Grievor disagrees that she reported to work under the influence of alcohol and unfit for duty on July 15, 2011.

39. By letter dated July 15, 2011 (attached as Exhibit 31), the Grievor was advised that disciplinary action may be taken with respect to her being under the influence of alcohol and unfit for duty on Friday, July 15, 2011. The Grievor was asked to provide a written response within three (3) calendar days from receipt of the letter, explaining her conduct.

40. On or about July 25, 2011, Ms. Peirce received the Grievor’s response to its letters dated July 14 and July 15, 2011, advising that she would like to “sit down” to discuss same. The Grievor’s written response is attached as Exhibit 32.

41. By letter dated July 25, 2011 (attached as Exhibit 33), Ms. Peirce confirmed receipt of the Grievor’s response and advised that a meeting was scheduled for August 4, 2011 to discuss the contents of the July 14 and 15, 2011 letters.

42. The Grievor reported for her scheduled shifts, without incident, from July 16 to July 28, 2011.

43. On July 29, 2011 the Grievor was sent home for reporting to work under the influence of alcohol and/or unfit for duty by the Acting Store Manager, Bryan Dunn. Mr. Dunn’s notes in respect to same are attached as Exhibit 34. Two CSR’s, Jessica Fellin and Louise Millar, witnessed the Grievor and also assessed her to be intoxicated. Ms. Millar’s and Ms. Fellin’s statements are attached as Exhibits 35 and 36, respectively. The Grievor agrees that she was under the influence and unfit for duty on July 29, 2011.

44. The Grievor reported for her scheduled shifts and worked without incident on July 30 and July 31, 2011.

45. On August 2, 2011, the Grievor was sent home for reporting to work under the influence of alcohol and/or unfit for duty by the Store manager. The Store Manager’s notes in respect to same are attached as Exhibit 37. The Grievor agrees that she was under the influence and unfit for duty on August 2, 2011.

46. By letter dated August 2, 2011 (attached as Exhibit 38), the LCBO advised the Grievor that disciplinary action may be taken in respect of her reporting for work under the influence of alcohol and/or unfit for duty on July 29, 2011 and August 2, 2011. The Grievor was advised that such conduct would be discussed at the August 4 meeting.

47. On August 3, 2011, the Grievor reported to Heather Chalmers, Ms. Peirce’s District Assistant, and the Store Manager that she would be absent from her scheduled shift due to illness. Ms. Chalmer’s and the Store Manager’s notes in respect to same are attached as Exhibits 39 and 40, respectively. The Grievor did not provide any medical documentation in support of her absence.

48. On August 4, 2011, Ms. Peirce and Ms. McIntyre met with the Grievor and her union representative to discuss her conduct since July 14, as detailed above. Ms. Peirce’s and Ms. McIntyre’s notes from the meeting are attached as Exhibits 41 and 42 and summarized in a letter to the Grievor dated August 8, 2011, attached as Exhibit 43. At the meeting, when asked if she had an alcohol abuse problem, the Grievor stated “I think I started to have one, yes”. The Grievor further acknowledged that the July 15, 29 and August 2 incidents were probably the result of an alcohol abuse problem, noting that she had been up drinking all night and stated that she was prepared to participate in treatment for alcohol abuse.

49. By letter dated August 8, 2011 (attached as Exhibit 43), the LCBO advised that it was prepared to accommodate the Grievor and facilitate her attendance at a suitable treatment program and was asked to provide the following by August 31, 2011:

1. Confirmation of arrangements for her enrolment in a suitable alcohol addiction treatment program; and

2. The duration, dates, and times of her participation in that treatment program.

The Grievor was further advised that pending receipt of the requested information, the LCBO would defer its decision with respect to the Grievor’s conduct from July 14 to August 3, 2011.

50. On August 6, 2011, the Grievor arrived approximately 2 ½ hours late for her scheduled shift, without prior notification, and on August 7, 2011, she arrived 15 minutes late for her scheduled shift. The Store Manager’s notes with respect to same are attached as Exhibit 44.

51. The Grievor reported for her scheduled shift on August 8, 2011 and worked without incident.

52. On August 9, 2011, the Grievor was sent home for being under the influence of alcohol and/or unfit for duty. The Store Manager’s notes with respect to same are attached as Exhibit 45. The Grievor agrees that she was under the influence of alcohol and unfit for duty on August 9, 2011.

53. On August 10, 2011, the Grievor did not report for work at her scheduled start time of 10:00 a.m. When the Grievor attended at the store at approximately 11:05 a.m., she had a black eye and immediately asked if she could go home. The Store Manager’s notes with respect to this incident are attached as Exhibit 46.

54. On August 11, 2011, the Grievor called in sick for her scheduled shift, advising that she was having trouble seeing out her eye and that she did not look presentable to work. The Store Manager’s notes with respect to this incident are attached as Exhibit 47.

55. On August 12, 2011, the Grievor called in sick for her scheduled shift, advising that her eye was getting better but she was still having trouble seeing clearly. She advised, however, that she would report for her shift the next day (August 13). The Store Manager’s notes with respect to this incident are attached as Exhibit 48.

56. By letter dated August 12, 2011 (attached as Exhibit 49), the Grievor was advised that disciplinary action may be taken in respect of her conduct from August 6 to August 12, but it would defer its decision regarding disciplinary action pending receipt of the information requested in its letter dated August 8, 2011. The Grievor was further advised that unless she took steps to address her alcohol addiction, her employment would likely be terminated.

57. On August 13, 2011, the Grievor advised that she was still “black and blue” and “not presentable” so she would try to come in on Tuesday, August 16, 2011 and she would not be attending her shift of Sunday, August 14. The Acting Store Manager’s note with respect to same is attached as Exhibit 50.

58. On August 16, 2011, the Grievor advised that she was too weak to work and was not eating so she would not be attending her scheduled shifts on August 16, 2011 and August 17, 2011. The Acting Store Manager’s note with respect to same is attached as Exhibit 51.

59. On August 17, 2011, the Grievor advised that she did not look presentable to attend work for August 18 and 19, 2011. She was then absent for her scheduled shifts on these dates.

60. Shortly after her scheduled start time, the Grievor attended Store 297 on Saturday, August 20 and presented a medical note to the Store Manager dated August 20, 2011 advising that the Grievor was unable to work August 8 to August 20, 2011 inclusive. The Grievor’s face and eyes were covered in bruises. The Store Manager’s notes and the medical note dated August 20, 2011 are attached as Exhibits 52 and 53, respectively.

61. The Grievor subsequently attended at work on Monday, August 22, 2011, and continued to report for her scheduled shifts without incident until Sunday, September 4, 2011.

62. By letter dated August 26, 2011 (attached as Exhibit 54), the Grievor was advised that the LCBO had concerns with respect to the medical note received, and her conduct from, August 13 to August 20, 2011. However, again, the LCBO advised that it would defer disciplinary action pending receipt of the information requested in its August 8, 2011 (word omitted). The LCBO reminded the Grievor that it expected such information by August 31, 2011, failing which her employment would likely be terminated.

63. The LCBO did not, however, receive the requested information on or before August 31, 2011. By letter dated September 1, 2011 (attached as Exhibit 55), the LCBO confirmed that it had not received the requested documentation regarding the treatment of the Grievor’s alcohol addiction and further advised that a meeting had been scheduled for September 8, 2011 to discuss the Grievor’s conduct from July 14 to August 20, 2011 and her failure to provide the requested documentation.

64. The store was closed for Labour Day on Monday, September 5, 2011. The Grievor did not report for her scheduled shift on September 6, 2011, as per the Store Manager’s notes attached as Exhibit 56. The Grievor reported for work on September 7, 2011, dressed in her LCBO attire, but she was sent home as she was not scheduled to work that day.

65. The Grievor did not attend the meeting of September 8, 2011. Instead, the Grievor’s union representative attended the meeting and advised that the Grievor was sick and would not be attending. The Grievor did not attend her scheduled shift of September 8, 2011 and did not provide the store notification of her absence. The Store Manager’s notes with respect to her absence on September 8, 2011 are attached as Exhibit 57.

66. On September 9, 2011, the Grievor reported for work and submitted a medical note dated September 9, 2011 indicating that she was unable to work for medical reasons from September 6, 2011 to September 8, 2011 inclusive (attached as Exhibit 58).

67. By letter dated September 9, 2011 (attached as Exhibit 59), the Grievor was relieved from duty with pay.

68. On September 16, 2011 at approximately 9:00 a.m. the Grievor called the District Office; however, the District Assistant, Heather Chalmers, was on the phone and was unable to take her call. The Grievor called again at approximately 10:10 a.m. requesting to speak with Ms. Peirce. Ms. Chalmers advised her that she would let Ms. Peirce know that the Grievor would like to speak to her. The Grievor attempted to provide further information to Ms. Chalmers, but Ms. Chalmers advised that she could not discuss the matter with her. Ms. Chalmers’ notes in respect of this conversation is attached hereto as Exhibit 60.

69. On September 16, 2011 at approximately 4:53 p.m., Mr. Peirce contacted the Grievor’s Union representative, Frank Gullace, by email, requesting that he contact the Grievor to find out what she wanted to tell Ms. Peirce. Mr. Gullace responded via email stating that he had been trying to contact the Grievor for the last two days and she was not answering the calls. He further advised that he would try once again and get back to Ms. Peirce. The emails of Ms. Peirce and Mr. Gullace are attached as Exhibit 61.

70. Mr. Gullace did not get back to Ms. Peirce and, by letter dated September 20, 2011 (attached as Exhibit 2), the Grievor’s employment was terminated.

V. LCBO Policies

71. The following policies with respect to Social Responsibility are attached as Exhibits 62 and 63, respectively:

1. Social Responsibility at Work (AM-0403-05)

2. Challenge & Refusal: It’s Not Personal. It’s the Law (RO-0603-02)

72. The Grievor received training, and refresher training, in respect of the LCBO’s Challenge & Refusal Program and Policy, as per the training records attached Exhibit 64.”

2Ms. Peirce presented evidence on behalf of the Employer in this proceeding. The Grievor, Ms. Anagnostopoulos, was the sole witness for the Union. Their evidence, for the most part, touched on facts and exhibits referenced in the Agreed Statement Of Facts.

3The letter of termination dated September 20, 2011 is lengthy. After reviewing the grievor’s file from October 17, 2008 to September 9, 2011, and documenting the efforts the Employer had made to assist the grievor with respect to spousal and alcohol abuse issues, the letter, signed by Ms. Peirce, states:

“Ms. Anagnostopoulos, the LCBO cannot continue to tolerate your conduct as outlined herein and the resulting negative impact it has on store operations and other staff members. For a number of years, the LCBO has offered to assist you as outlined above. We have arranged and paid for a psychological evaluation and individual psychotherapy sessions. We have repeatedly advised you that we would accommodate you and assist in facilitating your attendance at a suitable alcohol treatment program. We have also held discipline in abeyance, in the hopes that you would provide information to confirm your participation in a suitable alcohol abuse treatment program. You have not done so, although you have been given ample opportunity to do so. Ultimately, you have not taken steps to facilitate your own accommodation.

Given the above, I have determined that disciplinary action is warranted for your conduct from July 14, 2011 to date and, after considering all of the information available to me, including your lengthy disciplinary record, your failure to provide the LCBO with documentation confirming your enrolment in a suitable alcohol treatment program, and your failure to attend the scheduled meeting on September 8, 2011, you are advised that your employment with the LCBO is terminated effective immediately for just cause……………………………”

4A grievance was subsequently filed on the grievor’s behalf on September 22, 2011. The Grievance Form, as written, claims that the grievor was unjustly dismissed from her casual CSR position.

5The Position Description for CSR sets out the purpose of the position in the following terms:

“The purpose of the Customer Service Representative position is to present the LCBO brand to our customers by executing all corporate programs to established standards at the store level. This encompasses all operational issues from providing engaging customer service to social responsibility, to receiving and stocking product, to performing cash duties and maintaining the general appearance and cleanliness of the store.”

The document further lists a variety of duties and responsibilities of a CSR working in a retail outlet under the headings of Engaging Customer Service, Social Responsibility/Environmental Stewardship, Store Operations and Corporate Knowledge. This Vice-Chair was informed that a casual CSR, such as the grievor, performs the same job duties as a full-time CSR.

6Store 297 is located in Acton, Ontario, a small community having a population of less than ten thousand (10,000) residents. It is a C class store with annual sales of approximately five million dollars ($5,000,000.00). The store is staffed by seven (7) employees, this number being comprised of a bargaining unit Manager, one (1) full-time employee and five (5) casual staff. As mentioned in the Agreed Statement Of Facts, the grievor was assigned to Store 297 from January, 2010 to the time of her termination in September, 2011. Prior to this period, she worked in Store 156 in Georgetown, Ontario.

7Ms. Peirce testified that a call-in procedure is in place in the event an employee is going to be absent or late. More specifically, the employee is required to notify the Store Manager or Shift Leader, if the Manager is not on site, prior to the start of their scheduled shift if they will be absent from, or late for, the shift. Ms. Peirce stressed that compliance with this procedure is extremely important given that unanticipated instances of absence or lateness can adversely affect a store’s operations. In this regard, she referenced the following:

i) It is very difficult to secure replacement staff if sufficient notice is not provided. This is particularly so with respect to Store 297, as there are not a lot of employees working at that location. Ms. Peirce advised that replacement opportunities are first offered to staff working at the store on the basis of seniority. If an employee cannot be found to cover for the absence, then employees working out of the Georgetown store are contacted. She noted, in effect, that this can be a time-consuming process and that it may result in increased costs in terms of overtime. In Ms. Peirce’s words, “last minutes changes are always difficult to make”;

ii) Store 297 may typically only have two (2) staff scheduled to work a given shift. If one (1) person fails to show up for their shift, the remaining employee, as a consequence, may be left alone to perform all of the required duties. Ms. Peirce testified that it is very difficult for a single employee to handle all of the customer service needs on the floor and at the register, as well as the other tasks required elsewhere. By way of example, she noted that it would be extremely challenging for one (1) staff member to receive a load of inventory and, at the same time, also be responsible for what is going on elsewhere within the store. Ms. Peirce observed that the LCBO could be billed by the delivery company for extra hours, if a load has to be turned away because of the lack of personnel on site. She further suggested that a shortage of staff on a given shift could increase the possibility of theft and security issues arising. In her judgment, such a shortage could negatively impact the quality of service expected by customers at the LCBO; and

iii) Absences and instances of lateness can inconvenience other employees working in the store. Such employees may be required to come in early or stay late, work on a scheduled day off, or work alone or short-handed. Additionally, delays could occur with respect to their lunches, breaks and rest periods. Ms. Peirce testified that two (2) employees at Store 297 complained to her orally about the grievor’s record of attendance. She recalled that their concern was whether the grievor would attend for her shift and, if she did, whether she would be fit to work.

Ms. Peirce could not remember receiving any actual complaints from customers relating to the times the grievor was absent or late at Store 297. Similarly, she could not recall if an increased level of theft was reported on those occasions. It was the thrust of her evidence that the grievor’s pattern of attendance created the potential for these effects.

8Ms. Peirce advised that the grievor’s attendance record was poor in the three (3) year period preceding her termination. More specifically, the grievor used twenty-nine (29) sick days in the period from April 18, 2008 to April 18, 2009, twenty (20) of which were due to an operation; twelve (12) days were missed in the same period for “personal family matters”; the grievor used thirty-two (32) sick days in the period September 1, 2009 to September 1, 2010; and she was absent from work on thirty-three (33) occasions between January 1 and May 31, 2011. The grievor’s Performance Appraisals for the first two (2) periods mentioned above describe her attendance as “unacceptable”. Ms. Peirce viewed the grievor’s record as one of “excessive absenteeism”. She noted that the annual average for full-time CSRs in the District over the same period was eight (8) days of absenteeism due to sickness.

9Ms. Peirce referenced the instances where the grievor was sent home for attending work under the influence of alcohol and/or unfit for duty. On those occasions, there were reports that the grievor smelled of alcohol; had trouble standing; was staggering; had glassy eyes; and had difficulty counting cash or signing into her register. Ms. Peirce maintained that arriving for work in such a condition could create a safety risk for both the grievor and other employees. She noted that the grievor did drop a case of product on August 9, 2011 when unloading inventory delivered to Store 297. In that instance, the product had to be written off. In Ms. Peirce’s judgment, an employee sent home in these circumstances affects customer service and the store’s overall operations to the same extent as if they simply did not report for their shift.

10In Ms. Peirce’s view, given the conditions exhibited by the grievor, a customer would likely be able to tell that she was under the influence of alcohol while at work. From her perspective, such an observation by a member of the public would seriously undermine the professional image that front-line employees of the LCBO are expected to project and could, as a result, detrimentally affect the reputation of the Acton Store. Ms. Peirce further stated that attending at work under the influence and/or unfit for duty is contrary to the Employer’s policy with respect to Social Responsibility At Work. This policy provides as follows:

“SUMMARY As a leader in promoting social responsibility, the LCBO expects all employees to behave in a responsible and professional manner while attending work and work-related social functions. This policy sets out the LCBO’s expectations of its employees while on duty and notes that breaches of this policy will result in disciplinary action, up to and including termination (see also AM-0403-04-Social Responsibility).

Intoxication Staff are not permitted to:

• consume alcoholic products while on duty, except at official events or if functions of position so require it (click on or refer to AM-0403-04-Social Responsibility)

• have/consume illicit drugs on LCBO property.

Disciplinary Action Staff members reporting for work at the beginning of the work day/shift or those returning to work from a break/lunch under the influence of alcohol/drugs to the extent that it interferes with their performance or is detrimental to the LCBO image, will be subject to disciplinary action up to and including termination.”

11Ms. Peirce also observed that, on those occasions where the grievor appeared for work under the influence of alcohol, she might be unable to engage effectively in the application of the Employer’s Challenge And Refusal Policy. Pursuant to this policy, a CSR is required to challenge and refuse service to the following categories of customers:

persons who appear to be under the age of 25, and who do not produce acceptable photo identification;

persons who appear to be intoxicated; and

persons who appear to be making a purchase for an individual whose age or intoxication would prevent them from purchasing alcohol.

LCBO staff receive regular training with respect to both the application and importance of the policy. Ms. Peirce advised that the policy is a central component of the LCBO’s mandate to promote social responsibility.

12It is apparent from all of the evidence that the LCBO, for some time, suspected that the grievor had an alcohol abuse problem. Its suspicions and concerns were documented in a number of letters forwarded to the grievor over the course of her employment. Ms. Peirce’s letter to the grievor dated June 13, 2011 is reflective of the substance and tone of these communications. The relevant passages from the letter read:

“…………………………………………………………………………….The LCBO continues to suspect that you have an alcohol abuse problem, despite your continuing denials of an alcohol abuse problem. Following an alcohol-related incident in the workplace in October 2006, the, LCBO arranged for you to attend a psychological evaluation at its expense in August 2007 for the purpose of obtaining treatment recommendations in relation to alcohol and spousal abuse. At that evaluation, you admitted to a history of alcohol abuse but, despite the October 2006 workplace incident, you denied ever drinking alcohol at work and stated that you had not consumed any alcohol in the past year and had no problem whatsoever with alcohol. As a result of your denials, the evaluation report did not include alcohol abuse treatment recommendations and only addressed recommended treatment for spousal abuse. Further to this recommendation and at the LCBO’s expense, you attended individual psychotherapy sessions at the Guelph Wellington Care and Treatment Centre for Sexual Assault and Domestic Violence. Following the completion of these individual sessions, you were recommended to attend group treatment sessions, but did not do so. Since then, the LCBO has continued to address and encourage you to seek professional assistance following absences from work due to reported incidents of domestic violence in May 2008, March 2009 and December 2010. The LCBO has also addressed further alcohol-related incidents in the workplace. Specifically, in December 2009 you reported to work late and under the influence of alcohol. At that time, you again denied having an alcohol abuse problem and were issued a written reprimand dated January 21, 2010. You had a suspected alcohol-related absence without notification on January 15, 2011 and a further incident on February 5, 2011 in which you reported for work under the influence of alcohol. Two attempts were made to meet with you at that time, but you failed to attend the scheduled meetings and were subsequently issued a two-day suspension dated February 25, 2011.

………………………………………………………………………………Ms. Anagnostopoulos, despite your denials, the LCBO strongly suspects that you currently have an alcohol problem. The LCBO has advised you that it is prepared to accommodate you and assist in facilitating treatment, but will only do so if you satisfy your duty to participate in your accommodation by admitting to and taking steps to address your alcohol problem and providing the LCBO with documentation in support of this. Given the nature of your responses at the June 1, 2011 meeting, and in the absence of documentation supporting that you have an alcohol addiction, the LCBO can only accept that you do not have an addiction requiring accommodation.

………………………………………………………………………………Ms. Anagnostopoulos, the LCBO will not continue to tolerate your conduct, including reporting for or being under the influence of alcohol at work, suspected alcohol-related absences or absences without authorization and/or notification, and failing to support illness-related absences with medical documentation obtained on the date of your absence. You are warned that any further conduct of this nature will result in further disciplinary action up to and including the termination of your employment.

You are again reminded that the LCBO offers an Employee Assistance Program, coordinated through Human Solutions, that is available at no cost to you 24 hours a day, 7 days a week by calling 1-800-663-1142 toll free.

13Ms. Peirce emphasized that the grievor was always adamant, when confronted with the Employer’s suspicions, that she did not have an alcohol abuse problem. She noted that the grievor’s first acknowledgement that she might have “started” to have one was at the meeting of August 4, 2011. This statement led to the LCBO’s offer to accommodate the grievor and to facilitate her attendance at a suitable alcohol addiction treatment program. The Employer’s willingness to engage in this process is documented in Ms. Peirce’s letter to the grievor dated August 8, 2011. The material excerpt reads:

The LCBO is pleased that you have now acknowledged, albeit reluctantly, that you have an alcohol abuse problem and that you are prepared to participate in treatment. Given this, the LCBO is prepared to accommodate you and assist in facilitating your attendance at a suitable treatment program. You are directed to provide the following information directly to my attention as soon as possible but no later than August 31, 2011:

1. Confirmation of the arrangements for your enrolment in a suitable alcohol addiction treatment program;

2. The duration, dates, and times of your participation in that treatment program.

Upon receipt of the above information the LCBO will determine what, if any, accommodation is required to facilitate your attendance at the treatment program. In addition, upon your subsequent completion of the treatment program you are directed to provide the LCBO with documentation from your treatment provider confirming your successful completion of the treatment program.

Pending receipt of the information requested above, the LCBO will defer its decision with respect to disciplinary action for your failure to report for work and failure to give prior notification to the store of your absence on July 14, 2011, and for being under the influence of alcohol and unfit for duty on July 15, 2011, July 29, 2011 and August 2, 2011. The LCBO will also defer taking action with respect to your absence from work on August 3, 2011, for which you have failed to provide the required supporting medical documentation.

14As noted between paragraphs #50 and #66 of the Agreed Statement Of Facts, the grievor subsequent to the August 4th meeting continued to be late and/or absent without prior notice; failed to supply medical documentation in conformity with the Employer’s requirements; and attended at work under the influence of alcohol and/or unfit for duty. She also failed to provide the information requested by Ms. Peirce in her letter of August 8, 2011 pertaining to the treatment program, and did not attend the meeting scheduled for September 8, 2011 to discuss these issues. As a consequence, Ms. Peirce, after consultation with the Regional Director and Human Resources personnel, decided to terminate the grievor’s employment. She testified that in arriving at the decision to dismiss, she considered the grievor’s disciplinary record over the prior three (3) years and the fact that the latter’s conduct did not improve notwithstanding numerous meetings and letters related to same. Ms. Peirce believed that the grievor had been accorded an ample opportunity to change her behavior. Ultimately, she concluded that the employment relationship was no longer viable.

15The grievor was fifty-six (56) years old as of the date she gave evidence in this proceeding. She completed a one (1) year Business Administration course at a community college while in her late teens. Thereafter, she worked in a clothing store and in her family’s restaurant business. For part of the period during which she was employed by the LCBO, the grievor also worked overnight at Walmart stocking shelves.

16During the period material to this case, the grievor lived in a second floor apartment on Mill Street East in Acton. Her apartment was situated within a commercial area. It was located approximately one (1) kilometre from Store 297. The grievor estimated that it generally took her about twenty (20) minutes to walk to work. Her doctor’s office on Eastern Avenue was located between her apartment and Store 297. The grievor advised that it was less than a ten (10) minute walk from that office to her place of employment on Queen Street.

17During the course of her evidence, the grievor agreed that she had above average absenteeism from 2008 to the date of her termination. The grievor further acknowledged the following: she was expected to attend for all scheduled shifts, and to show up on time, unless there was a real emergency which prevented her from doing so; if she was unable to attend for a scheduled shift, or was going to be late, there was a requirement that she contact the store and advise the Manager or Shift Leader of that fact; and that she could be disciplined for failure to provide this prior notice.

18The grievor asserted that much of her conduct between 2008 and August, 2011 was caused by the abusive relationship she experienced with her husband. As mentioned in the Agreed Statement Of Facts, there had been a long history of spousal abuse. On the grievor’s account, this came to a head in December, 2010 when she was assaulted by her husband and suffered a resulting concussion. The grievor advised that she then separated from her husband and obtained a restraining order against him. It was her evidence that, while their relationship ended at that juncture, she continued to experience stress as a consequence of the husband’s failure to pay certain of her bills. In substance, the grievor claimed that her mind was not functioning properly in this period. In her words, she was not thinking right and was unable to cope with what was going on in her life. She described herself as then being “a different person”.

19The grievor maintained that her failure to notify the Employer she would be absent or late was, in part, related to her inability to access a telephone. Her evidence on this point may be summarized as follows: prior to December, 2010, there were times when her husband would not allow her to use the telephone; there were problems with her telephone line in the period between mid-July and early August, 2011; there were no other people living in her building and her friend in the building next door was not available during the day; she did not think it appropriate to go into a local business and ask to use their telephone; and there was no pay phone close by.

20The grievor in her communications with the Employer in September, 2006 denied that she had an alcohol abuse problem. It was her evidence that she did not then believe she had such a problem. Rather, she simply used alcohol to calm her nerves and to get her through the day. The grievor agreed that, in retrospect, she did in fact have an alcohol abuse issue at the time. As noted at paragraph #12 of the Agreed Statement Of Facts, the grievor told Dr. Nemeth in August, 2007 that she had not consumed alcohol in the past year and that she had no problem whatsoever avoiding alcohol. On the basis of this information, Dr. Nemeth recommended that the grievor attend individual psychotherapy and group treatment for purposes of addressing the reported spousal abuse. The grievor recalled that she attended about ten (10) of the individual counselling sessions and that she found them to be quite helpful. She elected to not pursue the group treatment. The grievor explained that participating in such a program was not feasible for the following reasons: she worked both days and nights; she could not afford to take time off from work; and it would be difficult to arrange for transportation to the treatment site given the existing bus schedule.

21The grievor agreed that she was under the influence of alcohol and unfit for duty on July 29, August 2 and August 9, 2011. In cross-examination, she further agreed that it is unprofessional, and contrary to the Social Responsibility At Work policy, for a CSR to attend work while under the influence. The grievor maintained that she now knows it is wrong to report to work in such a state, and that any employee doing so may be subject to discipline. She added that “back then” she did not know what her thinking was. Similarly, the grievor testified that, at the time, she did not feel her condition would undermine her ability to apply the Challenge and Refusal policy. Looking back, she agreed that it would likely have impaired such ability. The grievor was asked by counsel for the Employer why she did not call in sick, instead of reporting to work, on those occasions when she was under the influence. I noted her response as: “Yes, if near a phone, my mind was not right back then, I was a different person.”

22The grievor denied that she reported to work under the influence of alcohol and unfit for duty on July 15, 2011. I note the following with respect to this incident:

i) The Store Manager, in his report, noted that he smelled alcohol on the grievor when she arrived for the start of her 1:00 p.m. shift;

ii) Another co-worker noted that the grievor appeared fit to work. She acknowledged, however, that she was not close enough to the grievor during their exchange to detect alcohol on her breath;

iii) During the grievor’s meeting of August 4, 2011 with Ms. Peirce and Ms. McIntyre, she admitted that she had been up all night and had been drinking steadily with a neighbour between 9:30 p.m. on the evening of July 14th until about 5:45 a.m. the following morning. Ms. McIntyre’s notes of the discussion record that the grievor said she was still intoxicated when she arrived for work; and

iv) In paragraph #48 of the Agreed Statement Of Facts, the grievor agreed that the incident of July 15, 2011 was “probably the result of an alcohol abuse problem”.

While it is difficult to accurately assess the extent to which the grievor was under the influence of alcohol on July 15th, I think it more likely than not, given all of the circumstances, that the Store Manager correctly assessed her fitness to work that day.

23The grievor agreed that she did not provide the information requested in Ms. Peirce’s letter of August 8, 2011 by the August 31st deadline. Additionally, she did not take any steps to arrange for enrolment in a suitable alcohol addiction treatment program. It was the grievor’s evidence that the program recommended by the LCBO was a residential program located in Guelph, Ontario and that it was one (1) month in duration. The grievor testified that she would not have been able to attend such a program, as she had five (5) pets at home and had no one to take care of them if she was away for an extended period. She further explained that she could not afford to board the animals. I note Ms. Peirce’s statement to the effect the grievor did not inform her that she could not attend a residential treatment facility. During cross-examination, the grievor indicated that she did not inquire about non-residential programs where she would not be required to stay overnight. At another point, however, she stated that she did ask a physician about other options. The grievor could not recall the name of the doctor she spoke to and what information, if any, they may have provided. Additionally, she could not remember if she asked Ms. Peirce for an extension of the August 31st date. Ms. Peirce, in her evidence, advised that no such request was made by either the grievor or the Union. The grievor also stated that she had no idea as to why she failed to attend the subsequent meeting of September 8, 2011. She offered the following comment by way of explanation: “I can’t explain anything from that period of time, I’m sorry”.

24While the evidence is not entirely clear, it appears that Dr. Dhanya Jayalath was the grievor’s personal physician between early 2008 and late 2014. Dr. Jayalath, a number of other physicians and a Nurse Practitioner practiced out of Acton Medical and Urgent Care. The office had regular hours for scheduled appointments, as well as a Walk-In Clinic. At one (1) point in her evidence, the grievor testified that Dr. Jayalath did not make any recommendations for treatment. That statement, however, is inconsistent with a Patient Referral form filed as an exhibit in this proceeding. The document records that Dr. Jayalath did refer the grievor to a psychiatrist, Dr. Erik Mulder, on September 9, 2011 and that there was a later referral from the office to another psychiatrist, Dr. Mary Alexander, in November, 2012. Both referrals described the grievor’s chief complaint as “anxiety, query PTSD”. The grievor advised that she was not entirely satisfied with Dr. Jayalath and that she later started to search for a new doctor. She, ultimately, became a patient of Dr. A. Poldes towards the end of 2014.

25An appointment was scheduled for the grievor to see Dr. Mulder on March 8, 2012. The grievor failed to attend the appointment. In her words, it skipped her mind. By way of explanation, the grievor advised that she was then staying with her daughter in Hamilton, Ontario during a period in which the latter had two (2) surgeries for complications arising from the birth of her first child. The grievor did not recall if she asked for the appointment to be rescheduled.

26As mentioned above, the grievor was given a second referral to see Dr. Alexander, another psychiatrist. To date, she has still not been seen by Dr. Alexander. The grievor explained that one (1) of the doctor’s colleagues had passed away and that Dr. Alexander, herself, experienced a period of illness. This Vice-Chair was told that the grievor remains on Dr. Alexander’s waiting list but that an appointment has not been scheduled. The grievor advised that she remains interested in pursuing an appointment with, and receiving treatment from, Dr. Alexander.

27The grievor did not contact the Employee Assistance Program (EAP) following her termination to ask about the resources available for alcohol abuse. Ms. Peirce advised the grievor in the letter of termination that EAP services would be available to her at no cost for a period of six (6) months. The grievor was unable to provide a reason as to why she did not contact the service provider. The grievor testified that she did contact Alcoholics Anonymous on one (1) occasion by telephone to ask about its program. She elected against seeking their assistance, as she did not want to repeatedly attend meetings to air her “dirty laundry”.

28The grievor advised that she turned to the Church for support. More specifically, she attended a weekly Christian Education program at St. Alban the Martyr Anglican Church in Acton. It was her evidence that the discussion within the program touched on alcoholism, marriage and divorce. The grievor stated that she met two (2) other women in the group who assisted her with respect to her issues. The grievor also became a volunteer at the Church’s ‘Food for Life’ program. That service operates as a food bank for people in need. It is clear that the programs offered at the Church were not treatment directed. The grievor maintained, however, that her involvement with same brought her comfort and helped her to implement change in her life. A character reference prepared by the Rector of the Church was filed as an exhibit in this case. It reads in part:

Throughout the four years that I have known Jean I have found her to be an intelligent, trustworthy and reliable person of deep faith and humility. She is friendly and sensitive to the needs of others and always deports herself with calmness, sobriety and compassion.

29It is apparent from all of the evidence that the grievor did not receive any professional treatment for alcohol abuse between the date of her termination and the last day of her testimony in December, 2015. No medical reports were filed with respect to her condition in the period following her discharge.

30The grievor testified that she no longer abuses alcohol. She advised that she does not need or crave it, as before, and that she does not have alcohol in her home. It was her evidence that she stopped drinking “cold turkey”, and that she did not find it difficult to do so. The grievor stated that, at most, she might have a drink twice a year. By way of example, she referenced having a toast on New Year’s Eve. The grievor maintained that she previously used alcohol in order to cope with her emotional issues. She maintained that these issues have materially subsided given the separation from her husband. The grievor noted that she now has two (2) grandchildren and a good relationship with her daughter. In her words, she now has “a calmer, peaceful life” and “everything is different, it is a whole new world”.

31The grievor insisted that alcohol would not impact her work if she was reinstated into her former position at the LCBO. She maintained that, in that event, she would comply with all of the Employer’s policies. The grievor testified that, looking back, she can now see how her lateness and absences negatively impacted the workplace. Additionally, she stated that she now appreciates it is wrong for an employee to report for work under the influence. The grievor stressed that she loved her job at the LCBO. She commented as follows: “If I could have a second chance to improve myself, I’d be very happy”, and “I’m very sorry and ashamed, it wasn’t me back then”.

32The grievor has been unsuccessful in her efforts to secure other employment subsequent to her termination. As of May, 2015, she is in receipt of monies from the Ontario Works program. She also receives financial assistance from her step-father in the form of loans.

33The parties presented extensive argument in support of their respective positions. A substantial number of authorities were also filed with this Vice-Chair. They are listed in an Appendix attached hereto. It is unnecessary to recite all of the submissions in detail. The arguments and authorities have, however, been considered at length prior to the preparation of this Decision. What follows below is a summary of the parties’ positions with respect to the issues relevant to the resolution of the instant grievance.

34Counsel for the Employer referenced the misconduct described between paragraphs #34 and #70 of the Agreed Statement Of Facts. On her account, the misconduct may be categorized as follows:

i) the grievor was absent from work on July 14, August 3, August 10 to August 20, September 6 and September 8, 2011;

ii) the grievor was late for work on August 6 and August 7, 2011;

iii) the grievor failed to provide advance notification with respect to her absences and instances of lateness of July 14, August 6, August 7, August 10, August 20 and September 8, 2011;

iv) the grievor failed to provide medical documentation relating to her absence on August 3, 2011 and provided insufficient medical documentation to support her absences of August 10 to August 20, September 6 and September 8, 2011; and

v) the grievor reported to work under the influence of alcohol and/or unfit for work on July 15, July 29, August 2 and August 9, 2011.

35Counsel for the Employer submitted that the grievor’s record of being absent and late served to undermine the foundation of the employment relationship, namely that an employee provides their labour in return for compensation. She argued that employees must report to work as scheduled and on time, failing which they are subject to discipline in the absence of a legitimate excuse. Counsel observed that, prior to her termination, the grievor was absent or late some seventeen (17) times over a period of just less than two (2) months. She referenced Ms. Peirce’s evidence concerning the adverse impact unscheduled absences and lates can have on both the store’s operations and on other employees. Counsel noted that Ms. Peirce spoke of both the actual and potential impact of the grievor being absent or late. She submitted that, with the exception of the July 14th absence for which a timely medical note was provided, there was no legitimate reason provided for any of the grievor’s absences or lates. This Vice-Chair was asked to find that this flawed record of attendance warranted the imposition of discipline.

36Counsel for the Employer noted that failure to provide advance notification provides a separate and distinct cause for discipline, even if the absences and/or lates are for legitimate reasons. She submitted that employees who expect to be absent or late have a responsibility to notify the Employer of that fact, failing which they become subject to discipline. Counsel, again, referenced Ms. Peirce’s evidence as to the importance of giving such prior notice and the adverse impact on store operations that can result from a failure to do so. She further noted that the grievor had been previously disciplined, by way of letters of reprimand and suspensions, for failing to provide the advance notice required by the Employer. Indeed from counsel’s perspective, it is troubling that the grievor, in view of her history, did not make any real effort to notify the LCBO in advance of the absences and lates in issue. Counsel argued that there is an onus on the employee to establish they were unable to communicate they would be absent or late prior to the start of their shift. On her view of the evidence, the grievor here failed to adduce any evidence of incapacity or inability to notify the Employer. She submitted that, in the circumstances, discipline was warranted.

37Counsel noted that the grievor, as a consequence of her excessive absenteeism, was instructed to obtain medical notes on the date of her absence from work. In this regard, she referenced the content of Ms. Peirce’s letters to the grievor of February 25, April 18, May 17 and June 13, 2011. The latter letter contains the following statement:

..You have been advised that you are required to obtain a medical note on the date of your absence from work and that medical notes dated after the date of your absence are unsatisfactory in supporting your absence. Notwithstanding this, you have failed on repeated occasions to comply with the requirement to obtain a medical note on the date of your illness-related absence and have been disciplined as a result of this.

On counsel’s analysis, the above-cited requirement was reasonable given the grievor’s high level of absenteeism over a considerable period of time. She reiterated that no medical documentation was provided to substantiate the absence on August 3, 2011, and that insufficient documentation was provided in respect of the absences of August 10 to August 20, September 6 and September 8, 2011. Counsel reviewed the facts surrounding each of the aforementioned absences. She then asserted that none of the grievor’s excuses for failure to comply with the Employer’s legitimate requirement, of which she was fully aware, are credible and should, therefore, be rejected. Counsel submitted that this failure on the part of the grievor merited a disciplinary response.

38Counsel reviewed the circumstances around the incidents of July 15, July 29, August 2 and August 9, 2011 when the grievor was sent home for attending work under the influence of alcohol and/or unfit for duty. She submitted that this represents serious misconduct and observed that the grievor had been previously disciplined for similar behavior. Counsel acknowledged that the grievor denied that she was under the influence and unfit for work on July 15th and that she only admitted to being in that state on the latter three (3) dates. She suggested that it is, ultimately, immaterial if the grievor reported to work in that condition on only three (3), rather than four (4), occasions given the serious nature of the misconduct. Counsel referenced Ms. Peirce’s evidence that attending at work under the influence of alcohol is inconsistent with the LCBO’s mission and vision, as well as its corporate policies. She also noted that the following adverse impacts could result from this form of misconduct: the grievor’s ability to effectively carry out her duties, such as the application of the Challenge and Refusal policy, could be compromised; it could result in health and safety risks to both the grievor and other employees working in the store; the store might be required to operate short-staffed if a replacement was not available, with a consequent decline in the quality of customer service; and the reputation of the LCBO could be diminished in Acton if the grievor was observed to be intoxicated while at work. Counsel, in summary, submitted that discipline was warranted for this type of serious misconduct. She stressed that pursuant to the Social Responsibility At Work policy, an employee is subject to discipline, up to and including termination, for reporting to work under the influence of alcohol.

39Counsel for the Employer reviewed the grievor’s record for the period October 20, 2008 to June 13, 2011. In that timeframe, the grievor received two (2) counsellings, three (3) letters of reprimand, a one (1) day suspension, a two (2) day suspension, three (3) three (3) day suspensions, and a five (5) day suspension. Counsel noted that none of the discipline was contested through the filing of a grievance. She observed that the grievor was warned on several occasions that her misconduct could no longer be tolerated and that her continued employment was at real risk. Reference was made to Ms. Peirce’s letters of June 13 and June 21, 2011. An excerpt from the former is set out at paragraph #12 of this Decision. The latter correspondence contains the following caution:

“Jean, I am increasingly troubled by your conduct and am extremely concerned with your well being. I truly hope that you will take the gesture and comments that we have made in this letter seriously. I implore you to seek out professional help in dealing with your issues and again warn you that your employment is in serious jeopardy if your misconduct continues.”

Counsel further noted that notwithstanding these warnings, the grievor continued to engage in similar misconduct, as described in paragraph #34 above.

40Counsel for the Employer emphasized that the LCBO elected to defer the imposition of discipline following the grievor’s disclosure at the meeting of August 4, 2011 that she might have started to have an alcohol abuse problem. As mentioned earlier, the grievor did not provide the information requested, relating to enrolment in a suitable alcohol addiction treatment program, by the August 31st deadline; continued to engage in further misconduct; and failed to attend the meeting scheduled for September 8th to discuss these issues. Counsel submitted that, given all of the circumstances, the Employer did not rush to termination. From her perspective, the grievor was given a number of opportunities after July 14, 2011 to demonstrate that she was capable of meeting her employment obligations. Counsel argued that there was no indication at the time of termination that some lesser sanction would result in a change in behavior on the part of the grievor. In her words, the Employer reached the point where “enough was enough”. This Vice-Chair was asked to conclude that termination of the grievor’s employment on September 20, 2011 was justifiable under the principles of both progressive discipline and culminating incident.

41It is the position of the Employer that the grievor’s reported alcohol abuse problems and her personal, emotional and psychological issues relating to spousal abuse do not warrant the substitution of a lesser penalty for all of the reasons set out below.

42Counsel for the Employer acknowledged the LCBO had a long-standing suspicion that the grievor had an alcohol abuse problem. It was her submission, however, that this suspicion, coupled with the grievor’s statement that she did have such a problem, does not mean that she, in fact, had an addiction at the relevant time or that she was unable to control her alcohol abuse. On counsel’s reading of the authorities, medical evidence is required for purposes of establishing an addiction. By way of example, the Arbitrator in Accuride Canada Inc. and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 27 (Bishop Grievance) made the following comment with respect to drug addiction:

“5…………………………………………………………………………If one is claiming an illness, the illness must be confirmed by cogent and objective medical evidence of such. In other words, a self-diagnosis of drug addiction is no more compelling as proof of illness than a self-diagnosis of cancer or heart disease. Proof of illness needs a competent, objective medical opinion in that regard, or, at the least, proof of drug abuse amounting to an addiction requires confirmation of that from some competent professional dealing in substance abuse.”

Counsel stressed that the grievor failed to provide any medical or other independent evidence to establish that she had an addiction or that she was an alcoholic. Indeed, on her analysis, the grievor herself provided little evidence about her drinking habits in the period from July to September, 2011. Counsel suggested that drinking too much alcohol with a friend on a night before a scheduled shift does not demonstrate the grievor was an alcoholic. Rather, it may simply reflect the exercise of poor judgment. Counsel further suggested that an alcoholic would not likely be able to stop drinking “cold turkey”, as claimed by the grievor. In summary, it was her submission that the grievor failed to meet the onus of establishing she was an alcoholic.

43Counsel for the Employer maintained that the Union’s case in-chief was primarily focused on alcohol abuse in terms of the excuse offered for the grievor’s behavior. She observed that evidence of domestic abuse, and the grievor’s mental state at the time of the misconduct, arose largely from her cross-examination. Counsel advised that the LCBO does not dispute the prior history of domestic abuse. She noted, however, that there is a lack of evidence with respect to the following matters: whether the grievor actually received a concussion in December, 2010; whether the spousal abuse resulted in the grievor experiencing symptoms of post traumatic stress disorder, as claimed; the impact of domestic abuse on the grievor’s mental state; and why the grievor would continue to experience stress in the period following the separation from her husband and, most notably, during the period from July to September, 2011. It was counsel’s submission that medical evidence should have been presented with respect to these issues. She suggested that, in the absence of such evidence, this Vice-Chair can only speculate on how the domestic abuse might have impacted the grievor’s actions.

44Counsel for the Employer argued that even if this Vice-Chair were to accept that the grievor had an alcohol addiction, or that she was experiencing some mental disability related to the prior domestic abuse, there is still a requirement to establish a nexus between these conditions and the misconduct engaged in. More specifically, she noted that no medical evidence was led to prove that either condition contributed to the misbehavior. On her assessment of the evidence, the grievor did not connect her absences and lates, her failure to provide advance notice in respect of same, or her failure to provide the required medical documentation, to either her drinking or to a specific medical condition. Counsel observed that, instead, the grievor provided a more general excuse, namely, that she was not herself, was not in a good frame of mind, was under a lot of stress and wasn’t thinking clearly. It was her submission that, without supporting medical evidence, such a general claim is insufficient to establish the grievor lacked the capability to meet her employment obligations or to warrant any reduction in the disciplinary penalty. Counsel referenced the following awards, inter alia, in support of this submission: Cami Automotive Inc. and Canadian Auto Workers, Local 88 (J.M. Grievance); Bosal Canada and Canadian Auto Workers, Local 1837 (Curry Grievance); Dominion Castings Ltd. and United Steelworkers of America, Local 9392 (Krasic Grievance); and Air Canada and Canadian Union of Public Employees (Airline Division) (Young Grievance). The following passage from the Bosal Canada award captures the gist of counsel’s argument:

“4. Any question of diminished mental capacity affecting work performance and conduct in the workplace is, of course, a medical question, which can be established only by a qualified medical opinion in that regard. The medical opinion must be cogent and persuasive and must establish not only an altered mental state during the relevant period, but, also, a direct causal connection between the individual’s mental state and his particular conduct or behavior in the workplace. Quite obviously, outside mental stresses of one kind or another affect many people today but they do not necessarily always affect an employee’s ability to properly carry out his responsibility as an employee in a particular workplace. Again, a causal connection must be established between the two.”

45Counsel further argued that even if this Vice-Chair were to accept that the grievor suffered from alcohol abuse, or had a psychological condition, and that such conditions were a factor in all of her misconduct, there remains an onus on the Union to show that the grievor has rehabilitated herself and has a good prognosis if returned to the workplace. It is the position of the Employer that such onus has not been satisfied in this case.

46Counsel asserted that this dispute is not an accommodation case, as in Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC). She, nevertheless, submitted that an employee, such as the instant grievor, must take all of the necessary steps to ensure they can perform all of their required duties. This, in her view, includes a responsibility to address any condition which impairs such performance. Counsel maintained that if an employee has failed to address the situation, they may be properly terminated, as long as the principle of progressive discipline has been correctly applied. She stressed that in such a scenario, the employee is not punished for having a condition. Rather, they are terminated because the employment relationship is no longer viable. This approach is reflected in the following passages from the award in Uniroyal Goodrich Canada Inc. and United Steelworkers of America, Local 677 (N.S. Grievance) (1999), 1999 CanLII 35843 (ON LA):

“111 An employer can discharge an employee for inadequate performance or failure to perform the essentials of a job. Using a traditional approach to this case, one could easily conclude that the Company had just cause for discharging the grievor on August 4 because he reported to work drunk despite his being disciplined and counselled about such behavior in the past. The next question would be whether the grievor’s alcoholism would be a mitigating factor calling for the arbitrator to exercise the jurisdiction or discretion to substitute another result. The answer to this would depend on whether the evidence would support the conclusion that the grievor’s alcohol dependence is now in a state of remission or whether he has achieved sufficient rehabilitation to make the re-establishment of the employment relationship viable……………………….

112…………………………………………………………….………………..An illness or condition which prevents an employee from maintaining adequate attendance can be grounds for termination of a contract of employment. The reason for this is that an employer is contractually entitled to the benefit of its bargain with the employee. Regular attendance is part of that bargain. Chronic absenteeism has significant cost impact upon an employer. Therefore, while an employee may have blameless or innocent reasons for his/her absences, employers are not expected to bear unusual costs and disruptions for extended periods of time. Therefore, termination may be appropriate, not as a form of punishment, but in order to sever an unviable employment relationship. Alcohol dependence and its effects upon the employment relationship can be approached in a similar manner.

113 As an arbitrator under the Labour Relations Act, I have the jurisdiction and the discretion to look at the essential elements of the dispute between these parties. The arguments of counsel and their clients have touched on concepts of discipline, termination and human rights principles. But essentially, this dispute must be looked at in terms of whether the Company was justified in terminating the grievor’s employment. While the discharge letter itself indicates that the termination was “for cause”, and while concepts of “blameworthiness” are too easily attached to a situation where a person reports for work drunk, it is more appropriate to view this case as essentially one concerning termination. For a grievor suffering from alcohol dependence, as in cases of innocent absenteeism, the question is not whether punishment is appropriate. The question is whether the grievor’s past record establishes an unacceptable level of performance and whether the future prognosis is one that can anticipate a viable employer/employee relationship. Therefore, the approach should not be to look for fault or blame in the case of an alcoholic, but to focus on whether the legitimate contractual expectations of the employer can be achieved.”

47Counsel argued that in determining whether a viable employment relationship can be achieved, regard must be had to the following: the LCBO’s efforts prior to termination to assist the grievor with respect to domestic abuse and her suspected problem with alcohol abuse; the grievor’s efforts, or lack of efforts, to address the problems; and the grievor’s conduct up to the point of termination. In this regard, counsel referenced the following in the course of an extensive review of the facts:

i) In 2007, the LCBO paid for an independent medical examination for purposes of obtaining treatment recommendations for alcohol and spousal abuse. Additionally, it covered the cost for the grievor to subsequently attend the individual counselling sessions. The grievor testified that she found the aforementioned sessions to be helpful, but felt that they ended prematurely. Counsel noted that the grievor did not then pursue other options, such as asking the LCBO to pay for more sessions or requesting a referral from her family physician. She suggested that the grievor was not really committed to getting more treatment at the time. In this regard, counsel observed that the grievor chose not to pursue the group treatment recommended by Dr. Nemeth. In her judgment, the grievor would have made greater efforts, if she truly wanted to address her issues and maintain her recovery;

ii) The grievor did not leave her husband in 2007, contrary to what she told Dr. Nemeth in August of that year. Upon the grievor’s return to work in April, 2008, there were further instances of spousal abuse, as documented in paragraphs #16 to #19 of the Agreed Statement Of Facts. Counsel noted that the LCBO in this period responded as follows: it encouraged the grievor to contact her counsellor at her prior treatment program, and her personal physician, to secure assistance; urged her to get help and reminded her about the services available through the EAP; offered flexibility in terms of the grievor’s schedule, while she addressed the matter; and indicated a preparedness to transfer the grievor to another store and to develop a response plan should her husband attend at the workplace. Counsel considered it material that the grievor did not accept any of these offers and that she did not request any other accommodation;

iii) The grievor’s misconduct continued in the period following the separation from her husband in December, 2010. The misconduct occurring between February 25 and June 13, 2011 is set out in paragraphs #27 to #31 of the Agreed Statement Of Facts. Counsel referred to Ms. Peirce’s letters of February 25 and June 13, 2011 and noted that, prior to imposing discipline, Ms. Peirce asked the grievor if she had an alcohol abuse problem and undertook that, if she acknowledged to having such a problem, the LCBO would accommodate same and assist with the facilitation of treatment. The grievor, on those occasions, was also reminded about the availability of the EAP. Counsel stressed that the grievor repeatedly denied that she had an alcohol abuse issue or an addiction, and that she never requested any accommodation in respect of either spousal or alcohol abuse;

iv) The Employer decided not to impose discipline in response to the grievor’s absences from work between June 13 and June 16, 2011. As noted at paragraph #33 of the Agreed Statement Of Facts, the grievor informed Ms. Peirce that the absences occurred as a consequence of her being raped in an alley by a stranger. As noted therein, the LCBO implored the grievor to get professional help to deal with her issues and warned that her employment was in serious jeopardy if the misconduct continued; and

v) Notwithstanding the above warning, the grievor’s misconduct continued. The specifics of same are detailed in paragraphs #34 to #47 of the Agreed Statement Of Facts. This series of events led directly to the meeting of August 4, 2011 at which the grievor finally acknowledged that she had an alcohol abuse issue. As a consequence of this acknowledgement, the LCBO responded with the proposal that the grievor attend a suitable addiction treatment program. It further elected to defer discipline for the prior instances of misconduct pending confirmation from the grievor that she was actively seeking treatment. Despite this arrangement, the grievor subsequently engaged in the misconduct set out in paragraphs #50 to #62 of the Agreed Statement Of Facts. Counsel emphasized that the Employer nevertheless stuck with the August 31st deadline for the provision of the required information pertaining to treatment. She further observed that the grievor was not immediately terminated because of her failure to provide the necessary information by that date. Instead, a meeting was scheduled for September 8, 2011 to discuss all of the outstanding concerns. Counsel noted that the grievor failed to attend this meeting.

48In summary, counsel for the Employer reiterated that the LCBO did not act hastily in terminating the grievor’s employment. In her view, the grievor was given every opportunity to secure treatment and to demonstrate that there would be a positive prognosis going forward. She noted that the grievor failed to take advantage of these opportunities, despite having been cautioned on several occasions that her continued employment was at risk. Counsel argued that the grievor also failed to provide any clear explanation for why she did not provide the requested documentation by August 31, 2011. She suggested that all the grievor did at the time of her termination was to obtain a referral to a psychiatrist, which led to an appointment being scheduled for March, 2012. Counsel maintained that this initiative was simply not enough given all of the circumstances. From her vantage, the grievor sought no other treatment or support from the time of her discharge to the date of the aforementioned appointment, despite having ready access to a number of health care providers. It was counsel’s submission that the grievor merely offered excuses for her failure to seek and obtain the necessary treatment for alcohol abuse or any other personal or psychological issue she may have been experiencing. For these reasons, this Vice-Chair was asked to accept Ms. Peirce’s assessment that the employment relationship was no longer viable and that there was no potential for positive progress in the future given the grievor’s history with the LCBO.

49Lastly, counsel repeated that the Employer was fully prepared over a lengthy period to accommodate the grievor’s issues. It was her submission, simply put, that the grievor failed to do her part in this process. She referred to the following passages from the award in New Flyer Industries Limited and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 3003 (Salvador Grievance):

“58 Thus, based on the foregoing high authority, the complaining employee has a duty “to facilitate the search for an accommodation”. No search can begin without knowledge of the problem. The grievor in the present case was obligated to disclose his illness to the Company and ask for assistance in dealing with it. Only then could a reciprocating employer duty be triggered. See Mitchnick and Etherington, Labour Arbitration in Canada, at p. 249. While it was an Agreed Fact at the arbitration hearing (Ex. 3, para.4) that the grievor has been addicted to alcohol and/or drugs throughout his employment, the Company alleged that the grievor was not forthcoming about his needs at the material times. The Company was therefore limited in what it could offer as an accommodation. On the whole, the evidence supports this argument and I accept it.

………………………………………………………………60……………………………………………There was no Union evidence to show that a request was made by the grievor or anyone on his behalf for support and assistance in 2006 and thereafter. I accept the Company’s explanation that it would have been inappropriate for management to intervene in the grievor’s personal life without invitation. Clearly the grievor was aware from his experience that the Company was open to helping. As cited in the authorities above, employees requiring accommodation are under a duty to facilitate the search for accommodation. Here the grievor did not bring to his employer’s attention an ongoing need for help with his disability……………………..”

50Counsel next addressed the post-discharge evidence relating to the grievor’s efforts to obtain treatment for alcohol abuse and for any personal or psychological issues stemming from the domestic abuse. At the outset, she emphasized that the grievor has not received any formal treatment to address her problem with alcohol. No evidence was led to establish that the grievor has consulted with any medical professional or treatment agency concerning this issue. Counsel noted, in this regard, that the grievor elected against participating in the Alcoholics Anonymous program. Instead, she sought the support of her Church and became involved in its programming. Counsel argued that such involvement does not equate with treatment. It was her submission that there was an obligation on the grievor to secure help from an appropriate medical practitioner or facility, similar to what would be required in an accommodation case. The award in Burns Meat (Re) (1996), 1996 CanLII 20392 (MB LA) was referenced on this point.

51Counsel argued that this Vice-Chair should not accept, or rely on, the grievor’s assertion that she no longer abuses, or is addicted to, alcohol. She described this as a “concerning statement”, given the perception of many in the field that “once an alcoholic, always an alcoholic”. Counsel viewed it as significant that the grievor could not say, with any precision, when, in fact, she ceased drinking. She noted that no family members, friends or clergy were called to support the grievor’s claim to sobriety. In her judgment, more is required than just the grievor’s statement to the effect she no longer has an issue with alcohol. Counsel referenced the fact that the grievor told Dr. Nemeth in 2007 that she had stopped drinking. She observed that the grievor had obviously resumed the consumption of alcohol subsequent to that statement being made and suggested that there is no reason to be confident the grievor will not start drinking again. Counsel submitted that it is material that no medical evidence was presented to show that the grievor has been rehabilitated and no longer has a problem with alcohol. Put another way, there is no reliable evidence that the grievor will not again abuse alcohol if reinstated.

52In the course of her submissions on this point, counsel reviewed the award in Ontario Public Service Employees Union and Liquor Control Board of Ontario (Carmichael Grievance). The relevant passages therein read:

“86 However, in the alternative, even if his condition is that of an undiagnosed drug addict, the grievor has not convinced me that his discharge should be overturned and that he should be returned to work at the LCBO. In addition to not having any medical evidence to support a diagnosis of addiction, I have no medical evidence to support that the grievor has been rehabilitated and is fit to return to work.

87 He has never attended any formal rehabilitation therapy. He never undertook a residential program or received any type of counselling from a trained medical professional. At one point, he attended some NA meetings with Mr. Dignard but he is no longer doing so. I have absolutely no medical evidence before me to establish that the grievor has been rehabilitated and that the problems that led to his discharge have been resolved and are under control. It makes no sense to reinstate the grievor when he has not received any treatment for the condition that allegedly gave rise to the theft in the first place……………………...….

89 Even if the union had invoked the Human Rights Code, the duty of an employer to accommodate an employee with a disability does not eliminate the employer’s right to discipline or discharge an employee who commits a serious employment offence. The employee also bears an obligation to facilitate the accommodation process by getting the help which is needed from the appropriate medical facility or individual. There is no evidence of rehabilitation in this case. See in this regard Hamilton (City) v. Amalgamated Transit Union, Local 107 155 L.A.C. (4th) 337 (Knopf) and Canada Post Corp. and Canadian Union of Postal Workers (Zachar Grievance) (1998) C.L.A.D. No. 811 (Shime).”

53Counsel for the Employer referenced the grievor’s claim that she experienced psychological issues, and possibly symptoms of post traumatic stress disorder, as a consequence of the long history of spousal abuse. She viewed it as material that the grievor failed to obtain any treatment for these conditions between her termination in September, 2011 and December 16, 2015, the latter being the last day on which she presented evidence in this proceeding. Counsel advanced the following arguments on this aspect of the case:

i) Insufficient evidence was presented to show that the grievor was unable to attend the scheduled appointment with Dr. Mulder in March, 2012. Counsel noted that the grievor’s daughter was not called as a witness to corroborate her mother’s inability to attend. From her perspective, it is likely that Dr. Mulder’s office would have rescheduled the appointment if there was a legitimate reason why the grievor missed the initial one. In the alternative, counsel maintained that, if the grievor was not welcomed back at this psychiatrist’s office, she should have gone to her family physician in a timely fashion in order to get another referral. She observed that the subsequent referral to Dr. Alexander did not occur until December, 2012. Counsel insisted that, in cross-examination, the grievor was unable to provide a satisfactory explanation for this delay. It was her submission that, in the circumstances, it was incumbent on the grievor to obtain another referral in a more timely manner;

ii) Counsel noted that the grievor was critical of Dr. Jayalath and that she asserted that this physician did not offer any treatment recommendations. Counsel submitted that the latter assertion is at odds with the evidence, as it is apparent that Dr. Jayalath made the referrals to both Dr. Mulder and Dr. Alexander. Additionally, Dr. Jayalath had previously suggested that the grievor seek out the services of a local shelter as a way of addressing the spousal abuse. Counsel argued that an adverse inference should be drawn against the grievor given the Union’s failure to call Dr. Jayalath to testify on behalf of the patient. She stated that, in any event, if the grievor was not satisfied with the medical care provided by her family physician, there were a number of options available to her with respect to securing treatment for the conditions arising from the domestic abuse. Counsel emphasized that it took the grievor until 2014 to find a new doctor. She referenced the fact that Dr. Poldes was also not called as a witness in support of the grievor’s case;

iii) Counsel viewed it as significant that the grievor has still not seen Dr. Alexander. Rather, she remains on this psychiatrist’s waiting list. In counsel’s judgment, the grievor was bound to do more than just wait for an appointment. Simply put, she argued that there is no evidence before this Vice-Chair as to the current state of the grievor’s psychological condition and her prognosis moving forward. Counsel submitted that, as a consequence, there is no basis to support a reinstatement to employment. She referred to the following authorities, inter alia, on this point: Grober Inc. v. United Food and Commercial Workers, Local 175 (Dwyer Grievance) (2002), 2002 CanLII 79116 (ON LA); and J.I. Case Co. and United Steelworkers of America, Local 2868 (McKee Grievance); and

iv) Counsel further suggested that there is no independent evidence to support the grievor’s claim that her husband is no longer living with her and is out of her life. In other words, the grievor has not properly established that the source of her stress has been resolved and that she is now capable of meeting her employment obligations. Counsel argued that the grievor’s daughter or friends should have been called to give evidence that the grievor is now a different person. In her view, the grievor’s personal problems should not override the Employer’s legitimate interests. Counsel submitted that, in the circumstances of this case, it would be inappropriate to provide a last chance to this grievor, particularly so given the numerous opportunities provided to her to confront and address her issues. This Vice-Chair was cautioned against any fine-tuning of the Employer’s disciplinary response. The following authorities, inter alia, were cited in support of these submissions: Re Raven Lumber Ltd. And International Woodworkers of America Local 1-363 (1986), 1986 CanLII 6735 (BC LA); Toronto District School Board and Canadian Union of Public Employees, Local 4400 (W. Grievance) (1999), 1999 CanLII 35841 (ON LA); Toronto District School Board and Canadian Union of Public Employees (G. Grievance) (1999), 1999 CanLII 35886 (ON LA); and Re Rolland Inc. and Canadian Paperworkers Union, Local 310 (1983), 1983 CanLII 4940 (ON LA).

54In summary, it is the LCBO’s position that, given the prior application of progressive discipline; the extensive efforts made to accommodate and assist the grievor to the point of termination; and the lack of any evidence of formal treatment and a positive prognosis, termination of the grievor’s employment was a reasonable response in all of the circumstances.

55Counsel for the Employer submitted that other mitigating factors are not persuasive and do not support the substitution of a lesser penalty. More specifically, she referenced the following: the grievor’s record of discipline is excessive; her period of active employment, after deducting the lengthy leave of absence between October, 2006 and April, 2008, is only five and one-half (5 ½) years in duration; and the fact that economic hardship is not unusual in cases of this nature. Additionally, counsel emphasized that the grievor displayed a lack of candour when giving her evidence. She maintained that the grievor’s evidence on a number of material issues was vague, inconsistent and not credible. On her analysis, the grievor failed to acknowledge any wrongdoing and appeared to lack insight as to the negative impact her conduct had on the Employer’s operations. Counsel suggested that the grievor’s conduct and demeanour during the course of the hearing demonstrates that the employment relationship is not capable of being restored. A number of authorities, including the following, were cited in support of this submission: Voith Fabrics and U.N.I.T.E., Local 720T (Kamara Grievance); Re Great Atlantic & Pacific Company of Canada and Retail, Wholesale and Department Store Union, Local 414 (1978), 1978 CanLII 3393 (ON LA); Ontario Public Service Employees Union and Ministry of Community and Social Services (Aboutaeib Grievance); City of Toronto and Canadian Union of Public Employees, Local 79 (Kourtsidis Grievance); and Labourers International Union of North America, Local 506 and Canadian Waste Services Inc. (Minto Grievance). The following passage from the last referenced award is reflective of the general approach taken in these cases:

“166 In ordinary human terms, an arbitrator is unlikely to be favourably disposed towards a witness who has been less than candid. It is hard to “give the grievor a break” when he has sought to mislead. Quite apart from that, though, in determining whether the employment relationship can be “repaired”, one of the key factors that should be considered, is the grievor’s potential for rehabilitation-that is, whether it can be said that the grievor has “learned his lesson”, and will thereafter conform to expected standards of behaviour. And, in that context, a lack of candour during the hearing, merely compounds the earlier failure to acknowledge any faults. It suggests that the grievor has learned nothing from the predicament in which he finds himself, and is likely to do the same thing again, if he thinks that he can get away with it-or, as in the instant case, if he thinks that the company may not be able to “prove” its case.”

Lastly, counsel argued that reinstatement should not be ordered on compassionate grounds alone.

56For all of the above reasons, this Vice-Chair was asked to dismiss the instant grievance.

57Counsel for the Union submitted that the grievor, in fact, is an alcoholic and that her alcohol abuse was responsible, in part, for the conduct which led to the termination. She argued that the Employer was aware, or at a minimum should have been aware, that the grievor had a serious issue with alcohol over the course of her employment with the LCBO. In this regard, counsel referenced the following:

i) Following the incident in September, 2006, the Employer required the grievor to undergo an independent medical assessment for the purposes of obtaining treatment recommendations for both alcohol and spousal abuse. Dr. Nemeth’s subsequent report of August 17, 2007 noted that the grievor had a history of alcohol dependency and abuse;

ii) Mr. Wilkinson’s letter to the grievor of January 21, 2010 followed an incident on December 11, 2009 where the grievor reported to work late and was under the influence of alcohol and unfit to work. In his correspondence, the District Manager confirmed that the LCBO would “accommodate an admitted alcohol addiction and assist in facilitating treatment”. He added that the grievor had a duty to participate in her accommodation by admitting to and taking steps to address her alcohol addiction and by providing documentation supporting her efforts. As the grievor denied having an alcohol abuse problem, discipline in the form of a written reprimand was imposed. The letter contains the following paragraph:

“The LCBO suspects that you have an alcohol abuse problem. However, given your repeated denials at the January 8 meeting the LCBO will accept that you do not have an alcohol abuse problem. You are advised that the LCBO remains prepared to accommodate an admitted alcohol problem and requests that you advise us if and when you are prepared to attend treatment.”

iii) Ms. Peirce’s letter to the grievor of February 25, 2011 documents the following: the grievor attended at her workplace on January 14, 2011 to drop off a doctor’s note pertaining to an absence which commenced on January 11th; prior to leaving the store, the grievor purchased a bottle of rum; later that evening the grievor called the store numerous times and sounded intoxicated; the grievor failed to report for her shift on January 15th; the grievor later advised that she was not able to work the shift, as she had fallen asleep on the kitchen floor; and the grievor denied she had consumed any of the rum purchased on the prior day. In her correspondence, Ms. Peirce reiterated the LCBO’s willingness to accommodate the grievor if she admitted to an alcohol addiction and took steps to address same. Ms. Peirce noted that the grievor had done neither as of the date of her letter;

iv) Ms. Peirce’s letter to the grievor of June 13, 2011 references an incident on May 20, 2011 in which the police entered the grievor’s residence and forcibly took her to an area hospital to see a psychiatrist. This occurred after LCBO staff contacted the police and expressed concern about her condition. In her correspondence, Ms. Peirce stated that the LCBO strongly suspected that the grievor had an alcohol abuse problem and repeated its willingness to accommodate same and facilitate related treatment, as long as the grievor was prepared to admit to the problem and take the necessary steps to address it;

v) Ms. Peirce’s letters to the grievor of July 15 and August 2, 2011, which were sent as a consequence of the grievor attending at work on July 15, July 29 and August 2, 2011 under the influence of alcohol and unfit for work;

vi) Ms. Peirce’s letter to the grievor of August 8, 2011, the material part of which is set out at paragraph #13 of this Decision; and

vii) Ms. Peirce’s letter to the grievor of August 12, 2011 which addressed the grievor’s conduct in the period between August 6th and August 12th. This included one (1) instance on August 9th when the grievor reported for work under the influence of alcohol and unfit for duty. Ms. Peirce warned the grievor that her employment with the LCBO would likely be terminated unless she satisfied her duty to participate in her accommodation by taking steps to address the alcohol addiction and providing the documentation requested.

58Counsel for the Union submitted that, based upon the above record, this Vice-Chair should reject any suggestion the Employer was not completely aware that the grievor struggled with the disability of alcoholism. She observed that such a suggestion would be inconsistent with the statement contained in many of the letters forwarded to the grievor to the effect that the LCBO was prepared to accommodate her alcohol abuse. Counsel also noted that much of the conduct referenced therein is common to persons struggling with an addiction. In the alternative, she argued that, even if the Employer was not certain as to the existence of a disability given the grievor’s denials and/or the lack of medical evidence, a sophisticated Employer, such as the LCBO, ought to have known the grievor was disabled.

59Counsel for the Union argued that the test in cases of this nature is whether the Employer knew or ought reasonably to have known that the grievor was suffering from a disability: see Wall v. The Lippé Group, 2008 HRTO 50 at paragraph 80. On her view of the evidence, this question should be answered in the affirmative. From her perspective, all of the indicators pointed to the existence of a disability. Counsel submitted that, at the very least, the Employer was obligated to ask for medical evidence, such as an independent medical examination, in order to confirm the existence of a disability requiring an accommodation. She asserted that the Employer improperly focused on the deficiencies in the medical notes provided by the grievor, rather than on determining what illness was causing, or contributing to, her problems in the workplace. Counsel further submitted that the grievor’s denials about having an alcohol abuse problem and her failure to voluntarily seek assistance for this condition did not vacate the Employer’s duty to further inquire about the grievor’s condition and to take the appropriate steps to accommodate same. She observed that the authorities have recognized that “alcoholism is a disease of denial”: see United Food and Commercial Workers International Union, Local 175 and Fearman’s Pork Inc. at page 35 and Brewers Distributor Ltd. and Brewery, Winery and Distillery Workers Union Local 300 (1998), 1998 CanLII 30113 (BC LA) at paragraph 88.

60Counsel for the Union argued that if the Employer had required the grievor to provide more specific medical documentation, and if such information confirmed an alcohol abuse issue, it would have triggered “a higher duty to accommodate”, which would have necessarily involved the Employer, the Union and the grievor. In substance, she claimed that the Employer’s failure to make this inquiry amounted to a lost opportunity to properly address the grievor’s problems with alcohol. Counsel maintained that the Employer’s request, as documented in Ms. Peirce’s letter of August 8, 2011, that the grievor arrange for enrolment in a suitable alcohol addiction treatment program was an insufficient response. This Vice-Chair was asked to conclude that the LCBO should have made greater efforts to assist the grievor at the time and that the grievor should not have been made responsible for obtaining her own treatment. On counsel’s analysis, the Employer ignored the fact that the grievor was suffering from a disability requiring an accommodation. Instead, it opted to characterize her actions as misconduct and to apply a regime of progressive discipline.

61Counsel for the Union argued that a hybrid analysis should be applied to the facts of this case. More specifically, she stated that a distinction should be drawn between culpable conduct resulting from voluntary action and non-culpable conduct attributed to a compelling disability or addiction. Counsel submitted that progressive discipline may be applied for the former type of misconduct, but that a more corrective and rehabilitative response is required for conduct which is viewed as non-culpable.

62The hybrid approach is described in Kemess Mines Ltd. and International Union of Operating Engineers, Local 115 (2008), 2006 BCCA 58. The following passages from that award set out the rationale for this approach in cases where there is a mix of addiction driven conduct and voluntary conduct:

“57 That takes me to the earlier-cited decision of the Labour Relations Board in Fraser Lake Sawmills. As the Board notes at para.36 of the decision, having first referred to Raven Lumber Ltd. (1986), 1986 CanLII 6735 (BC LA), 23 L.A.C. (3rd) 357 (B.C. Arb.) (Munroe), alcoholism and other addictions have for some period been treated as a medical condition “..for which a non-culpable response is appropriate where the disease prevents an employee from performing his or her job or from attending work regularly or being unable to meet the obligations of his or her job because of the disease”. Continuing at para. 37, the Board says this:

A basic premise of the culpable, non-culpable paradigm is that discipline has no place where there is no blameworthy conduct. The object of discipline is to bring inadequacies in work performance or conduct to an employee’s attention so as to correct or prevent its recurrence. That object cannot be achieved, nor is it consistent with basic notions of justice, for discipline to be imposed when the conduct at issue is beyond or outside the control of the employee.

58 However, as the Board then observes at paras. 38-39:

In the context of issues involving addiction and workplace misconduct, a review or the arbitration cases reveals a spectrum of facts and issues. At one end of the spectrum, the addiction compels or drives the grievor’s behavior to the extent of the grievor in effect having no control (at least control which should attract discipline) over his or her actions. At the other end of the spectrum there is addiction, but it is found to not have a causal link to the workplace misconduct.

In between these two ends of the spectrum are what could be terms (sic.) hybrid facts and cases. In the hybrid context, there is addiction which is directly related to or has a causal connection to workplace misconduct by the employee, but the addiction is not of such a nature so as to remove the grievor’s control or exercise of choice in respect to the misconduct. In this hybrid context, there is thus a mix of causes, a mix of addiction driven conduct (i.e., non- culpable conduct) and voluntary conduct (i.e., culpable conduct).”

63Counsel for the Union argued that it is difficult for the Employer to claim that no nexus exists between the grievor’s behavior and her alcohol abuse problem. In this regard, she observed that, in its letters, the Employer concluded on multiple occasions that there was a connection between the grievor’s alcohol consumption, or her purchase of alcohol on the day prior to an absence, and the absence itself. Additionally, counsel noted that a nexus is self evident on the occasions the grievor arrived at work under the influence of alcohol and unfit for duty.

64Counsel reviewed the grievor’s conduct from 2008 until the date of her termination in respect of which she received either counselling or discipline. During the course of her argument, she highlighted and listed which conduct should be considered as non-culpable in nature and what, in contrast, could be viewed as culpable. After completing this exercise, counsel submitted that the incidents of culpable conduct were relatively minor in nature and related primarily to attendance and the provision of insufficient medical documentation. She argued that while such misconduct merited some discipline, and possibly a lengthy suspension, it did not support or justify the ultimate sanction of discharge. To be clear, in reaching this conclusion, counsel factored out those instances where, on her assessment, there was a causal link between the grievor’s alcohol abuse and the workplace issues.

65Counsel reiterated that the grievor’s conduct exhibited all of the indicia of the negative effects of alcoholism. She submitted that, as a consequence, the non-culpable conduct should have been fairly addressed and not “disciplined away”. Counsel argued that the Employer adopted the wrong approach when it elected to respond solely with progressive discipline. From her perspective, the LCBO’s decision to terminate was unreasonable as it focused on punishment and treated the grievor’s condition as being entirely culpable.

66Counsel referenced Ms. Peirce’s evidence with respect to the following: the costs flowing from employee absences and lateness; the negative impact these have on store operations, employee morale and customer service; and the potential for theft, security and safety issues. She emphasized that Ms. Peirce’s evidence was largely speculative in nature, as it addressed what could happen versus what, in fact, occurred. Counsel noted that there is a lack of any concrete evidence to establish that the LCBO’s operations were adversely affected by the grievor’s conduct. As a consequence, this Vice-Chair was asked to give little weight to the Employer’s evidence on this aspect of the case. Counsel asserted that, in the circumstances, there would be no undue hardship experienced by the Employer if the grievor was reinstated to her former position.

67Counsel for the Union next argued that a number of other mitigating factors support a reinstatement, including the following:

i) The grievor experienced domestic abuse from her husband for approximately twenty (20) years. Such abuse had both a physical and emotional component. Counsel observed that this treatment led the grievor to turn to alcohol on her “bad days”. She acknowledged that the grievor continued to be affected by the history of abuse even after she separated from her husband in December, 2010. Counsel noted, however, that with the passage of time, the grievor’s life has changed for the better. She referenced the grievor’s evidence that she now has fewer bad days and has developed a solid relationship with her daughters and grandchildren;

ii) The grievor’s seven (7) years of seniority, while not extremely lengthy, should stand to her credit and should not be discounted;

iii) The grievor, given her age, will likely have a difficult time securing alternate employment, especially with her low and stale skill set. Counsel suggested that the grievor’s prospects of re-employment, especially in a small community such as Acton, are limited at best; and

iv) The economic impact on the grievor arising from her termination has been significant. Counsel noted that the grievor is now in receipt of assistance through the Ontario Works Program and that she also relies on friends and family for further financial support.

68Counsel for the Union observed that alcohol dependency is a treatable illness and one that requires effort and commitment. She referenced the support which the grievor received through her involvement with the Church and the positive impact it has had. Counsel acknowledged that the grievor has not received formal medical treatment for alcoholism and that she decided against participating in Alcoholics Anonymous. She cautioned, however, that the path the grievor took to promote her recovery should not be minimized. Counsel advised that the grievor is not opposed to a more formal treatment program for alcohol addiction and noted that she remains on a waiting list to see Dr. Alexander. She stressed that the grievor no longer wants to drink and does not need alcohol to give her strength. She attributed this, in large part, to the fact the grievor’s husband, who was previously the source of her stress, is no longer involved in her life. In summary, counsel submitted that, if reinstated, the grievor would be able to conform to the Employer’s expectations and could become a productive employee going forward.

69As mentioned, counsel for the Union acknowledged that a suspension, and even a lengthy one, might be merited as a disciplinary response to the grievor’s culpable conduct. She suggested, however, that a time-served suspension for the non-culpable conduct might be considered as excessive. In any event, counsel argued that a conditional reinstatement should be ordered to creatively and effectively address any continuing issues with alcohol abuse if this Vice-Chair were to find either of the following: the grievor’s efforts surrounding treatment have been insufficient to date; there is a demonstrable need for medical evidence with respect to treatment, prognosis or required accommodation. Counsel suggested that such a reinstatement could include terms requiring the grievor to obtain an appropriate medical assessment; complete a more traditional treatment program; attend and continue to attend meetings of Alcoholics Anonymous or of some similar program; complete counselling or treatment with respect to any residual effects of the prior domestic abuse; and to abstain from the use of alcohol. She further stated that this form of reinstatement could set out the effect any breach of the conditions imposed would have on the grievor’s continued employment. In counsel’s judgment, such a resolution would not amount to a last chance agreement. Rather, it would be the chance she was promised in August, 2011.

70In reply, counsel for the Employer argued that the combination of Dr. Nemeth’s report, the grievor’s history of alcohol related incidents in the workplace, and the Employer’s suspicions that the grievor had an alcohol abuse issue do not establish that the grievor, in fact, had a disability. She advanced the following arguments in support of this position:

i) Dr. Nemeth was not the grievor’s treating physician. Her report, in large part, was based on the grievor’s self reporting. Dr. Nemeth did not engage in a direct examination or assessment of the grievor’s alcoholism, given that the latter told her she was not consuming alcohol and had not done so for quite some time. Counsel emphasized that Dr. Nemeth did not make a finding that the grievor was an alcoholic or had a disability. Rather, her report simply stated that the grievor had a history of alcohol dependence. In counsel’s view, having a drink on a bad day does not equate with an addiction;

ii) Apart from the incident in 2006, the grievor was not consuming alcohol at work. Counsel argued that the fact the grievor on occasion reported to work under the influence does not by itself mean that she is an alcoholic. It was her submission that more evidence is required to establish the existence of a medical disability. She observed that there is no evidence to show that the grievor lacked control over her drinking; and

iii) A finding of disability must be made from the facts, not on the basis of suspicions. Counsel suggested that the grievor’s repeated denials may simply have been a reflection of the truth. She stressed that the grievor never testified that her denials, as documented in the many letters sent to her by the LCBO, were incorrect. Counsel argued that this Vice-Chair must base a finding of disability on the available facts and not on an unconfirmed suspicion.

71Counsel noted that Ms. Peirce did not say her approach would have changed if the grievor had been specifically diagnosed as having a disability. She argued that such a diagnosis would only have had significance from a legal perspective. First, it would trigger the duty to accommodate under the Human Rights Code and, second, if the disability was out of control and caused the misconduct, the conduct could not be considered as culpable and subject to discipline.

72Counsel suggested that the Union, in effect, advanced a duty to accommodate argument with respect to much of the period of the grievor’s employment, and that it was not limited to the specific period around the time of the grievor’s termination. It was her submission that this amounts to an improper expansion of the grievance. She emphasized that the grievance of September 22, 2011 does not on its face raise issues relating to human rights, the duty to accommodate, or harassment and discrimination. Counsel asserted that the issue in this case is not whether the LCBO accommodated the grievor to the point of undue hardship. Rather, it is whether there was just cause to terminate and, if so, whether the grievor’s use of alcohol, or other mitigating factors, warrant the substitution of some lesser penalty. In counsel’s view, the Employer did everything it could possibly have done to assist the grievor to change her conduct, all to no avail. She submitted that, as a consequence, the employment relationship was no longer viable at the point of termination.

73Counsel maintained that the Employer did confront the grievor about her suspected alcohol abuse on numerous occasions and that it, accordingly, satisfied its duty to inquire about the grievor’s condition. From her perspective, LCBO management repeatedly brought the issue of suspected alcohol abuse to the grievor’s attention and continually reminded her of the Employer’s willingness to accommodate and about the availability of the EAP. She maintained that the Employer did not ignore the issue, as alleged, notwithstanding all of the grievor’s denials. Counsel also referenced the Union’s argument that the Employer, prior to termination, should have forced the grievor to get more medical evidence surrounding her condition or to undergo an independent medical examination. In response, she asserted that it was not the Employer’s role to “force the grievor out of denial and into treatment”. Instead, pursuant to the duty to accommodate, the Employer has a duty to inquire and to provide a suitable accommodation. Counsel emphasized that it was the grievor’s obligation to accept and facilitate any offer of accommodation. She further noted that the LCBO arranged for an independent medical exam in 2007 following the earlier incident. In counsel’s words, that initiative “didn’t work”.

74Counsel for the Employer observed that the Union was present at all of the meetings where the Employer raised the issue of suspected alcohol abuse and offered to accommodate. A Union representative was also in attendance at the meeting of August 4, 2011 at which the grievor first acknowledged the fact that she might have started to have a problem with alcohol. It was counsel’s submission, in effect, that the outcome would not have been different if the Union had been more actively involved. She observed that after the August 4th meeting, the Employer kept imploring the grievor to get treatment. When she failed to provide the requested information by August 31st, a further meeting was scheduled for September 8, 2011. As mentioned, the grievor failed to attend that meeting. Counsel asserted that the LCBO was “trying to work with the grievor” but the latter was “not engaging in the process”. She stressed that the decision to terminate was delayed until September 20, 2011. In her view, there is no evidence that the grievor took any concrete action either before or after that date to secure help for her issues. Counsel stressed that the grievor was not without available resources, as she could have contacted her family physician, the EAP, or the Union for any needed direction and assistance.

75Counsel for the Employer submitted that it would be clearly inappropriate, and beyond this Vice-Chair’s jurisdiction, to review the grievor’s prior disciplinary record to determine what was or was not linked to the alleged disability. Put another way, she argued that it would now be wrong to go back and find that some of the conduct was non-culpable, such that progressive discipline ought not to have been applied. Counsel observed that such an approach would require this Vice-Chair to make findings of fact with respect to these prior matters and, ultimately, to determine whether the discipline imposed at the time was reasonable. She stressed that none of the past discipline was grieved and that the circumstances leading to such discipline are not captured by the instant grievance. In the alternative, counsel maintained that the prior discipline was not issued for non-culpable conduct. Rather, the discipline imposed was premised on the culpable aspects of the grievor’s behavior. Counsel noted that the Union did not argue that all of the absences or lates, the failure to provide advance notice of same, and the failure to provide proper medical documentation were related to the grievor’s alcohol abuse. She argued that, even if showing up for work under the influence is non-culpable, which the Employer contests, there are a substantial number of misconducts that are not linked to the alleged disability. In this regard, counsel stated that many of the incidents which occurred in the July to September, 2011 period, which led to the termination, have no nexus to alcohol addiction. In the final analysis, counsel asserted the Union failed to satisfy the onus of establishing that the grievor’s behavior was not culpable. She accused the Union of trying “to reverse this onus by turning the Employer’s suspicions into the fact of a causal connection”.

76Counsel for the Employer submitted that the issue of domestic abuse should not be “parcelled out” of any assessment of the grievor’s behavior. She suggested that any problems the grievor may have had with alcohol may have been driven by the domestic abuse. From her perspective, the status of such abuse is uncertain as at the time of termination. Counsel questioned whether it might have been continuing around that time, given the nature of the grievor’s absences over the period August 10 to August 20, 2011. She further observed that the psychiatric issues arising from the domestic abuse have not been fully addressed and resolved to date.

77Lastly, counsel for the Employer submitted that a conditional reinstatement should not be ordered here. She referenced the following in support of this submission: the grievor’s extensive record of discipline; the lack of a clear connection between much of the grievor’s misconduct and alcohol addiction; the grievor’s failure to obtain treatment following her termination; the absence of any supporting medical evidence pointing to a positive prognosis and rehabilitation; and all of the Employer’s efforts to assist the grievor prior to her discharge. In view of these factors, counsel suggested that any reinstatement of the grievor to her former position at the LCBO would merely be setting her up for failure.

78No medical evidence was filed in this proceeding to establish that the grievor had an addiction to alcohol, or that she was unable to control her consumption of alcohol, during the period material to this dispute. Similarly, no medical evidence was presented to show that the grievor’s past history of domestic abuse affected her mental state and whether it was a contributing factor to some, or all, of the incidents set out in the Agreed Statement Of Facts, and more particularly those which occurred between July and September, 2011. The need for objective medical evidence to establish an addiction or other disability is referenced in Accuride Canada Inc. and CAW-Canada, Local 27 (Bishop Grievance) and Ontario Public Service Employees Union and Liquor Control Board of Ontario (Carmichael Grievance). The complete lack of such evidence here makes it virtually impossible for this Vice-Chair to determine if the grievor suffered from a disability or disabilities captured by the provisions of the Human Rights Code, thereby requiring the Employer to accommodate same to the point of undue hardship. Additionally, it makes it difficult to establish the necessary nexus or connection between the grievor’s condition/s and her work-related behavior.

79As a result of the absence of medical evidence, this Vice-Chair cannot state, with the requisite degree of confidence, that the grievor was, in fact, an alcoholic over the relevant period. I have little doubt, however, based on all of the circumstances that she had an alcohol abuse problem. Her record is consistent with what one might expect of an employee experiencing this issue. Clearly, the Employer over a lengthy period suspected that the grievor abused alcohol. This suspicion is documented in numerous letters it sent to the grievor. Indeed, on multiple occasions, the Employer to its credit offered to accommodate the grievor if she would acknowledge a problem with alcohol abuse and agree to participate in treatment.

80The Employer did attempt to address the grievor’s issues. Its efforts with respect to the suspected alcohol abuse included the following:

i) In its letters to the grievor of January 21, 2010, February 25, 2011 and June 13, 2011, the Employer advised her that, if she admitted to an alcohol abuse problem, it would accommodate her and assist with the facilitation of related treatment. The grievor was also reminded therein about the availability of the EAP;

ii) The grievor was absent from work between June 13 and June 16, 2011. As noted in paragraph #33 of the Agreed Statement Of Facts, she alleged that this absence was due to her being raped by a stranger in an alley. While the Employer did not believe this explanation, it elected to not impose any discipline relating to this period of absence. Instead, it implored the grievor to seek professional help in dealing with her issues; and

iii) Following the grievor’s acknowledgement at the meeting of August 4, 2011 that she might have started to have an alcohol abuse problem, Ms. Peirce wrote to the grievor by letter of August 8, 2011 and advised that the LCBO was prepared to accommodate her and to facilitate attendance at a suitable alcohol addiction treatment program. Ms. Peirce requested that the grievor provide the necessary information about such program by August 31, 2011. At that same time, the grievor was informed that the Employer would defer to that later date any decision on whether to impose discipline for the incidents which occurred between July 14 and August 3, 2011. Discipline for further work-related misconduct was also deferred to August 31st by way of Ms. Peirce’s subsequent letter of August 12, 2011.

81It is apparent on the evidence that, until August 4, 2011, the grievor repeatedly denied having an alcohol abuse problem. Additionally, prior to that date, she did not request any accommodation with respect to same. I reject the suggestion that the Employer ignored the issue and failed to make sufficient inquiry about what was causing the grievor’s work related problems. Rather, I am satisfied that it confronted the grievor on numerous occasions over a lengthy period about her suspected alcohol abuse. For reasons which are not entirely clear, the grievor consistently denied that she had a problem. These denials effectively limited the Employer’s ability to respond to the situation. On my analysis, the grievor was not then prepared to address the condition/s which impaired her work performance.

82As noted, the grievor failed to take any steps to enrol in a suitable alcohol addiction treatment program by August 31, 2011. I have not been persuaded that the grievor was left entirely on her own to make the necessary arrangements. From her evidence, it seems that it was the Employer who recommended a residential program of one (1) month’s duration in Guelph, Ontario. There is no indication that the grievor asked the Employer for any further assistance or that she experienced problems in communicating with the identified program. Rather, the grievor simply advised that she could not attend the residential facility because there was no one else to take care of her five (5) pets. I note that this reason for non-attendance was not offered to Ms. Peirce at the time. In cross-examination, the grievor initially stated that she did not inquire about the availability of a non-residential treatment program. She later maintained that she did ask a physician about other options, but could not recall who she spoke to or what information she may have received. In the final analysis, I think it likely that the grievor would have made the necessary arrangements for the care of her pets, if she was truly interested in securing the required treatment and returning to her position at the LCBO.

83This Vice-Chair is also satisfied that the Employer took steps to address the domestic abuse experienced by the grievor. Its efforts included the following:

i) The Employer facilitated an independent medical assessment and paid for individual counselling sessions in 2007 and 2008, as described between paragraphs #8 and #14 of the Agreed Statement Of Facts;

ii) By letter of June 12, 2008, the Employer strongly encouraged the grievor to contact her counsellor at her treatment program and offered her flexibility in her scheduling at work while she addressed the problem;

iii) On April 9, 2009, Mr. Wilkinson and Ms. McIntyre met with the grievor about the domestic abuse she experienced on March 21, 2009. They reminded her about the availability of the EAP and encouraged her to contact her family physician for assistance and for a referral to appropriate services. The grievor was again offered flexibility with respect to her schedule. This communication is documented in Mr. Wilkinson’s letter of April 17, 2009;

iv) Mr. Wilkinson again addressed the issue of spousal abuse in his letter to the grievor of January 21, 2010. The concluding sentences of the letter read:

“…The LCBO remains extremely concerned regarding your domestic situation and recurring incidents of spousal abuse and strongly encourages you to seek assistance in dealing with your situation by contacting your family physician or the LCBO’s Employee Assistance Program for referral to appropriate services. The LCBO is prepared to assist you as far as is possible, but only you can take the steps necessary to deal with your domestic situation”.

v) Ms. Peirce in her letter of February 25, 2011, which followed the domestic abuse incident of December 29, 2010, advised the grievor that the LCBO was prepared to transfer her to another store and to develop a response plan should her husband attend at the store.

On the evidence presented, it is clear that the grievor never responded to the Employer’s offers by requesting a transfer or asking for any other accommodation relating to her domestic situation. As was the case with respect to alcohol abuse, I find that, at least up until the end of December, 2010, the grievor failed to take the steps necessary to address this issue.

84Given all the circumstances of this case, including the lack of any medical evidence; the grievor’s repeated denials that she had an alcohol abuse problem; her failure to respond to the LCBO’s offers of assistance with respect to domestic abuse; and all of the Employer’s efforts to address the grievor’s issues, I accept the Employer’s submission that the threshold issue here is not whether it accommodated the grievor to the point of undue hardship. Rather, it is whether there was just cause for termination and whether the grievor’s use of alcohol, her domestic abuse and other mitigating factors warrant the substitution of some lesser penalty. In this regard, I choose to adopt the approach taken in Uniroyal Goodrich Canada Inc. and United Steelworkers of America, Local 677 (N.S. Grievance) (1999), 1999 CanLII 35843 (ON LA) and Ontario Public Service Employees Union and Liquor Control Board of Ontario (Carmichael Grievance). The pertinent passages from these awards are found at paragraphs #46 and #52 of this Decision. The former award, as noted, states:

“………………………………………While the discharge letter itself indicates that the termination was “for cause”, and while concepts of “blameworthiness” are too easily attached to a situation where a person reports for work drunk, it is more appropriate to view this case as essentially one concerning termination. For a grievor suffering from alcohol dependence, as in cases of innocent absenteeism, the question is not whether punishment is appropriate. The question is whether the grievor’s past record establishes an unacceptable level of performance and whether the future prognosis is one that can anticipate a viable employer/employee relationship. Therefore, the approach should not be to look for fault or blame in the case of an alcoholic, but to focus on whether the legitimate contractual expectations of the employer can be achieved.”

85In the period July 15, 2009 to June 13, 2011, the grievor received the following discipline: three (3) letters of reprimand, a one (1) day suspension, a two (2) day suspension, three (3) three (3) day suspensions and a five (5) day suspension. This translates into nine (9) instances of discipline in a period of slightly less than two (2) years. Two (2) of the disciplinary sanctions, namely the ones imposed on January 21, 2010 and February 25, 2011, resulted from the grievor’s attendance at work under the influence of alcohol and unfit for duty. The balance related to instances where she failed to report for work without providing advance notice, reported to work late without prior notice and failed to supply appropriate medical documentation as required. It is significant that none of the above discipline was grieved at the time. The sequencing and level of the discipline would also seem to accord with the concept of progressive discipline, as generally understood.

86This Vice-Chair has not been persuaded that it would be appropriate to go behind the above-referenced discipline in an effort to differentiate between culpable and non-culpable conduct. I consider that it would be improper to reassess the circumstances of all of the prior incidents resulting in discipline and to now find that discipline should not have been levied for conduct found to be non-culpable. In such a process, I would necessarily be required to make findings of fact and to potentially determine that certain discipline previously imposed was not appropriate. In my judgment, it is too late to engage in this type of exercise, particularly as no grievances were filed at the time. Obviously, the grievor could have challenged the discipline when it was imposed, if she felt she was being improperly sanctioned for non-culpable behavior. In this regard, the bulk of the discipline, as mentioned above, was not imposed for what arguably might be considered as non-culpable conduct. Ultimately, I conclude that it would be wrong to now engage in a reconfiguration of the grievor’s disciplinary record. That record, as described between paragraphs #23 and #31 of the Agreed Statement Of Facts, must be accepted for purposes of assessing the reasonableness of any subsequent discipline.

87Notwithstanding the fact the grievor was warned that her misconduct would no longer be tolerated and that her continued employment with the LCBO was at real risk, she continued to engage in similar behavior over the period from July 14, 2011 to the date of her termination. The grievor’s record within this timeframe is as follows: on four (4) occasions, she reported to work under the influence of alcohol and unfit for duty (July 15, July 29, August 2 and August 9, 2011); she failed to provide notification of an absence or late on six (6) occasions (July 14, August 6, August 7, August 10, September 6 and September 8, 2011); and she failed to provide the required medical documentation on three (3) occasions (August 3, August 20 and September 9, 2011). To reiterate, all of this occurred within a period of approximately two (2) months.

88As mentioned previously, the Employer deferred imposing discipline with respect to the above incidents pending receipt of information relating to the grievor’s enrolment in a suitable alcohol addiction treatment program. When that information was not forthcoming by August 31, 2011, and the grievor failed to attend the meeting scheduled for September 8, 2011, the Employer was, in my judgment, clearly entitled to impose further discipline. I am satisfied that, at that juncture, there was just cause for termination. This Vice-Chair has considered the following, inter-alia, in reaching this conclusion:

i) The grievor’s record of attendance in the three (3) year period preceding her termination, as described in paragraph #8 of this Decision, reflects a pattern of excessive absenteeism;

ii) A number of negative consequences may result when an employee reports to work under the influence of alcohol and unfit for duty including: their safety and that of other employees may be jeopardized; their ability to apply the Challenge and Refusal policy may be impaired; the level of customer service may be diminished; and the reputation of the LCBO in the community may be undermined. The grievor, on those occasions she attended work under the influence, seemed oblivious to these risks. She clearly should have known that she was engaging in serious misconduct, given that discipline had previously been imposed for the same infraction. Her actions also constituted a breach of the LCBO’s Social Responsibility At Work policy. Pursuant to this policy, an employee is subject to discipline, up to and including termination, for reporting to work under the influence of alcohol;

iii) Failure to comply with the Employer’s call-in procedure with respect to absences and lates can have an adverse effect on the store’s operations. I accept Ms. Peirce’s evidence on this point. While some of these effects may not have occurred here, the District Manager’s testimony speaks to the importance of providing advance notice given the potential for significant disruption of the store’s operations;

iv) The Employer has a right to expect employees to attend at work absent a legitimate excuse. Failure to provide advance notification provides a separate cause for discipline even if the absence or late is for legitimate reasons. The grievor had previously been disciplined for failing to provide such notice and was certainly aware that failure to meet this expectation could result in discipline. I accept that the grievor failed to establish there was a valid reason for her numerous failures to provide the advance notification in question;

v) Given the grievor’s poor attendance record over a considerable period of time, it was reasonable for the Employer to require her to provide medical documentation dated the day of the absence, rather than after the fact. Failure to comply with this requirement could properly subject the grievor to discipline; and

vi) In view of the grievor’s lengthy disciplinary record and her continued misconduct following the meeting of August 4, 2011; the grievor’s failure to supply the information sought by Ms. Peirce by August 31, 2011; and her failure to attend the meeting scheduled for September 8, 2011, I find that Ms. Peirce could fairly conclude that the grievor was not going to change her ways and correct her behavior, despite the many opportunities extended to her to do so. Additionally, I accept that there was a solid basis for Ms. Peirce’s assessment that the employment relationship was no longer viable. I further accept the submission of counsel for the Employer to the effect that, at the time of termination, there was no indication that some lesser sanction would result in a change in behavior on the part of the grievor.

89It is apparent from the evidence that the grievor did not receive any professional treatment for alcohol abuse between the date of her termination and the last day of her testimony in December, 2015. This Vice-Chair was not told that she had started treatment as of the last day of argument in October, 2016. This encompasses a period in excess of five (5) years. It is also material that no medical reports were filed in this proceeding relating to the grievor’s condition in the post discharge period. I am satisfied that if the grievor was serious about seeking reinstatement to her former CSR position, then she should have sought help from an appropriate medical practitioner or treatment facility. This is particularly so given that alcohol dependency is generally considered to be treatable.

90As mentioned above, the grievor did not contact the EAP following her termination to determine what resources were available to assist her with the alcohol abuse issue. Pursuant to the letter of termination, she was entitled to resort to the program, at no cost, for a period of six (6) months. The grievor did not provide any real explanation as to why she chose not to pursue this option. Additionally, she made only one (1) telephone inquiry about the program offered through Alcoholics Anonymous. She elected, for the reason stated earlier, against participating in their program. Instead, the grievor testified that she turned to the Church for assistance. It was her evidence that she attended a weekly Christian Education program and participated in the activities of a Food Bank operated by the Church. While these involvements may have provided support to the grievor, I have not been persuaded that they supplanted the need to get professional help for her problems, particularly that relating to alcohol abuse.

91On balance, this Vice-Chair is simply asked to accept the grievor’s assertion that she no longer abuses alcohol. Given all of the circumstances existing in this case, I am not prepared to do so in the absence of related medical or professional evidence. There is no reason to conclude, or be confident, that the grievor will not resume abusing alcohol as she did after seeing Dr. Nemeth in 2007.

92It is similarly clear that the grievor failed to obtain any treatment for the psychological issues, and possible symptoms of post traumatic stress disorder, stemming from her long history of spousal abuse. Simply put, there is no reliable evidence as to her current mental state and prognosis moving forward. I note that the grievor maintained that her psychological issues materially subsided following the marital separation in late December, 2010. That claim is hard to reconcile with her record of discipline and misconduct in 2011.

93This Vice-Chair finds it difficult to understand why the grievor would overlook her appointment with Dr. Mulder in March, 2012 if she was, in fact, interested in receiving treatment for the continuing effects of domestic abuse. The grievor testified that she could not recall if she asked for the appointment to be rescheduled. I think it likely that she would have remembered doing so if she actually made such a request. The subsequent referral to Dr. Alexander suggests that she did not do so. To date, the grievor has still not seen Dr. Alexander and remains on the latter’s waiting list for an appointment. Given that the grievor was terminated in September, 2011, I would have expected her to take the necessary steps to secure other treatment in a much more timely fashion.

94An onus exists for the grievor to show that she has rehabilitated herself and has a good prognosis if returned to the workplace. This onus has not been satisfied here. There is no firm evidence that the grievor’s alcohol abuse has ended or that her psychological issues have been resolved, or at least brought to a manageable level. In the absence of such evidence, I am unable to find that a viable employer-employee relationship can be re-established. Ultimately, this Vice-Chair has not been persuaded that the grievor, if reinstated, would be able to conform to the expected standards of behavior and that she could become a productive employee going forward. To repeat, this conclusion is consistent with the approach taken in Uniroyal Goodrich Canada Inc. and United Steelworkers of America, Local 677 (N.S. Grievance) (1999), 1999 CanLII 35843 (ON LA) and Ontario Public Service Employees Union and Liquor Control Board of Ontario (Carmichael Grievance).

95I note the following with respect to certain of the evidence presented by the grievor:

i) On many occasions, her evidence was inconsistent, extremely vague and confusing. In several instances, she was unable to clearly explain why she had acted in a particular way, other than to state that her mind was not working at the time and she was then a different person;

ii) The grievor denied that she reported for her shift on July 15, 2011 under the influence of alcohol and unfit for duty. This denial is at odds with the evidence set out at paragraph #22 of this Decision;

iii) The grievor also provided inconsistent evidence as to whether Dr. Jayalath made any recommendations for treatment. At one point in her evidence, she testified that Dr. Jayalath did not do so. This statement is clearly inconsistent with a Patient Referral form emanating from this physician’s office. The form indicates that the referrals to both Dr. Mulder and Dr. Alexander were initiated from Dr. Jayalath’s office;

iv) It is reasonable to question the accuracy of the grievor’s assertion that her husband was out of her life as of December, 2010. I note, in this regard, that the injury the grievor sustained in August, 2011 is similar to the injuries she earlier received at the hands of her husband; and

v) Lastly, given both the nature of alcohol abuse and the grievor’s history, I find it hard to accept that she stopped drinking “cold turkey” and did so without any difficulty.

In summary, I am left with the distinct impression that much of the grievor’s evidence is unreliable. In my judgment, this negatively impacts the question of rehabilitative potential and the prognosis going forward.

96While this is truly a sad case given the grievor’s circumstances, this Vice-Chair concludes that it would not be appropriate to provide her with a “last chance” through the vehicle of a conditional reinstatement, as requested by the Union. The grievor, over the course of a considerable period, has been accorded numerous opportunities to confront and address her issues. It is a fair assessment to say that little progress was achieved, particularly with respect to the grievor’s use of alcohol. This Vice-Chair might have been more inclined to look favourably on this option, if there had been a record of treatment subsequent to the grievor’s termination and evidence of a positive prognosis as a consequence of same. In the absence of this type of information, there is no solid assurance that the grievor’s behavior will not continue as before. In considering the Union’s remedial request, I have also taken into account the length of the grievor’s seniority, the economic hardship arising from the termination and the grievor’s inability to date to find other employment. These factors are an insufficient foundation for the exercise of discretion in the grievor’s favour.

97On the first day of argument, which was the fourth hearing date in this matter, counsel for the Employer brought a motion to dismiss the grievance on the basis that the grievor had failed to satisfy the conditions agreed to with respect to the adjournment of the hearing on February 17, 2016. Late in the day on February 16, 2016, counsel for the Union contacted opposing counsel to request an adjournment of the next day’s hearing. The stated reason for the request was that the grievor had a medical issue which required her attendance at the hospital on February 17th. After the exchange of emails between counsel, it was agreed that the proceeding on February 17th would be adjourned on the following conditions: the grievor would provide detailed medical documentation confirming the reason for her inability to attend on the hearing date; and the grievor would provide confirmation that she was seen at the hospital on February 17th. The Employer also reserved its right to request that the grievance be dismissed because of the grievor’s failure to attend.

98Counsel for the Employer received the medical documentation requested on June 22, 2016, which was the next scheduled hearing date. More specifically, the Union provided a medical note from Georgetown Hospital dated February 16, 2016. It stated that the grievor had been seen in the Emergency Room that day and might “need rescheduling/time off until improving”. Counsel for the Employer argued that this note was insufficient, as it did not establish that the grievor was unable to attend the February 17th hearing. Counsel for the Union acknowledged that the note was not consistent with the conditions agreed to. It was the position of the Employer that, as a consequence, the grievance should be dismissed. Following argument on the motion, both counsel presented their respective submissions on the merits of the dispute. This occupied the better part of three (3) days.

99Given the disposition on the merits, it is unnecessary to address the Employer’s motion to dismiss. I would not, however, have been inclined to grant same for the following reasons:

i) While this Vice-Chair had granted a prior adjournment with respect to the September 16, 2015 hearing date, that adjournment was given so as to ensure that Union counsel had a fair and adequate opportunity to prepare her case;

ii) The present case is distinguishable from many of the authorities relied on by the Employer. It is not a situation where the grievor failed to attend one (1) or more hearing dates without any advance notice. In both instances here, there was some advance notice of the request for an adjournment, albeit short. On the facts before me, it would not be possible to find that the grievor was abandoning her grievance. This is not a situation where the grievor had ceased communications with the Union or failed to cooperate with counsel in the preparation or presentation of the case. I am also unable to find that what occurred her was tantamount to an abuse of the Grievance Settlement Board’s process;

iii) While the medical note provided by the grievor is vague and does not satisfy the conditions agreed to, it does appear that the grievor was experiencing medical issues on the day prior to the hearing. A fair reading of the note suggests that the doctor who completed it contemplated that the grievor might require additional time for improvement; and

iv) The motion here was heard after all of the evidence was completed. As noted, the parties were content that consideration of same be deferred until after the conclusion of the entire case.

In my judgment, the more appropriate response would have been to order that no liability attach to the Employer with respect to the period of time between February 17, 2016 and the next hearing date of June 22, 2016.

100For all of the above reasons, the termination is upheld and the grievance is dismissed.

Dated at Toronto, Ontario this 21st day of March 2017.

APPENDIX OF AUTHORITIES

AUTHORITES RELIED ON BY THE EMPLOYER:

-Abbott Laboratories Ltd. and Retail Wholesale Canada, Div. of C.A.W., Loc. 462 (Wright) (Re) (2001), 2001 CanLII 62140 (ON LA), 98 L.A.C. (4th) 302 (Thorne) (Ontario)

-Hendrickson Spring v. United Steelworkers of America, Local 8773 (J.S. Grievance), [2005] O.L.A.A. No. 433 (Haefling) (Ontario)

-Re Gates Rubber of Canada Ltd. and United Rubber Workers, Local 733 (1978), 1978 CanLII 3490 (ON LA), 20 L.A.C. (2d) 229 (Kennedy), rev-d [1980] O.J. No. 25 (Ont. H.C.J.)

-Saskatchewan Assn. of Health Organizations v. Canadian Union of Public Employees, Local 4777 (Moody Grievance) (2013), 2013 CanLII 12414 (SK LA), 230 L.A.C. (4th) 372 (Hood) (Saskatchewan)

-Re Brampton (City) and C.U.P.E., Loc. 831, Re (1991), 1991 CanLII 13482 (ON LA), 18 L.A.C. (4th)1(Foisy)(Ontario)

-United Automobile Workers, Local 195 and American Standard Products (Canada) Ltd. (1963), 1963 CanLII 1006 (ON LA), 14 L.A.C. 295 (Little)

-Re Valley Rite-Mix Ltd. and Teamsters Union, Local 213 (1974), 1974 CanLII 2325 (BC LA), 6 L.A.C. (2d) 339 (Ladner), rev’d (1975), 1974 CanLII 2328 (BC CA), 7 L.A.C. (2d) 202

-Canada West Foods (B.C.) Corp. and United Food & Commercial Workers Union, Local 2000 (Dedels Grievance), [1999] B.C.C.A.A.A. No. 74 (Bluman) (BC)

-Dashwood Industries Ltd. and C.J.A., Loc. 3054 (Innes)(Re)(1998), 73 L.A.C. (4th)

395 (Rose) (Ontario)

-Toronto (City) v. Toronto Civic Employees Union, Local 416 (Balchand Grievance), [2015] O.L.A.A. No. 337 (Stout) (Ontario)

-Re Ford Motor Co. of Canada Ltd. and U.A.W., Local 1520 (1975), 1975 CanLII 2127 (ON LA), 8 L.A.C. (2d) 149 (Palmer) (Ontario)

-Fishery Products (Marystown) Ltd. and Newfoundland Fisherman, Food & Allied Workers, Local 1245 (1979), 1979 CanLII 3947 (NL LA), 22 L.A.C. (2d) 439 (Hattenhauer) (Nfld)

-Smurfit-MBI v. Independent Paperworkers of Canada, Local 69 (Gaines

Grievance), [2003] O.L.A.A No. 693 (Haefling) (Ontario)

-Bullmoose Operating Corp. v. Communications, Energy & Paperworkers

Union, Local 443 (Tolmie Grievance), [2001] B.C.C.A.A.A. No. 32 (Devine) (BC)

-Re Canada Post Corporation and C.U.P.W. (Gerlach) (1987), 1987 CanLII 8884 (CA LA), 30 L.A.C. (3d) 291 (Picher) (Canada)

-Re Bosal Canada Inc. v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) Local 1837 (Storey Grievance) (2005), 2005 CanLII 94158 (ON LA), 136 L.A.C. (4th) 437 (Picher) (Ontario)

-Re Canada Post Corp. and C.U.P.W. (Venosa) (1990), 1990 CanLII 12700 (CA LA), 15 L.A.C. (4th) 418 (Adell)

-Ontario Store Fixtures and C.J.A., Loc. 1072 (Phinn), Re (1993), 1993 CanLII 16809 (ON LA), 35 L.A.C.(4th) 187 (MacDowell) (Ontario)

-United Food and Commercial Workers, Local 175 v. Better Beef Ltd. (Cox Grievance), [2007] O.L.A.A. No. 388 (MacDowell) (Ontario)

-Weyerhaueser Co. (Drayton Valley Operations) v. United Steelworkers Local1-207

(Greaves Grievance) (2007), 159 L.A.C. (4th) 56 (Power) (Alberta)

-Accuride Canada Inc. v. National Automobile, Aerospace, Transportation and

General Workers Union of Canada (CAW-Canada), Local 27 (Bishop Grievance),

[2006] O.L.A.A. No. 569 (Hinnegan) (Ontario)

-Ontario Liquor Boards Employees’ Union v. Ontario (Liquor Control Board of Ontario) (Devlin Grievance) (2004), 2004 CanLII 94716 (ON GSB), 128 L.A.C. (4th) 129 (Watters) (Ontario)

-Cami Automotive Inc. and Canadian Auto Workers, Local 88 (J.M. Grievance) (1994), 1994 CanLII 18710 (ON LA), 45 L.A.C. (4th) 71 (Brandt) (Ontario)

-Re Bosal Canada Inc. and Canadian Auto Workers, Local 1837 (2004), 2004 CanLII 94714 (ON LA), 129 L.A.C. (4th) 446 (Hinnegan) (Ontario)

-Miracle Food Mart of Canada and U.F.C.W., Locals 175 & 633, Re (1995), 1995 CanLII 18357 (ON LA), 48 L.A.C. (4th) 87 (Newman) (Ontario)

-Dominion Castings Ltd. v. United Steelworkers of America, Local 9392 (Krasic Grievance), [1999] O.L.A.A. No. 955 (Hinnegan) (Ontario)

-Re Air Canada and Canadian Union of Public Employees (Airline Division)

(Young Grievance), [2001] C.L.A.D. No. 472 (Munroe)

-Sifto Canada Corp. v. Communications, Energy and Paperworkers Union (Morden Grievance), [2007] O.L.A.A. No. 174 (Roberts) (Ontario)

-Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970

-Uniroyal Goodrich Canada Inc. and United Steelworkers of America, Local 677 (N.S. Grievance) (1999), 1999 CanLII 35843 (ON LA), 79 L.A.C. (4th) 129 (Knopf) (Ontario)

-New Flyer Industries Ltd. v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 3003 (Salvador Grievance) (2010), 203 L.A.C. (4th) 129 (Peltz) (Manitoba)

-Ontario Public Service Employees Union v. Ontario (Liquor Control Board of Ontario) (Carmichael Grievance), [2010] O.G.S.B.A. No. 264 (Johnston) (Ont.GSB)

-Burns Meat (Re) (1996), 1996 CanLII 20392 (MB LA), 55 L.A.C. (4th) 159 (Teskey) (Manitoba)

-Grober Inc. v. United Food and Commercial Workers, Local 175 (Dwyer Grievance) (2002), 2002 CanLII 79116 (ON LA), 109 L.A.C. (4th) 53 (Williamson) (Ontario)

-Re J.I. Case Co. and U.S.W.A., Local 2868, [1992] O.L.A.A. No. 640 (Levinson) (Ontario)

-Ball Packaging Products Canada Inc. and United Food and Commercial Workers’ Union Local 175 (1989), 1989 CanLII 9366 (ON LA), 8 L.A.C. (4th) 315 (Clement) (Ontario)

-Re Raven Lumber Ltd. And International Woodworkers of America Local 1-363 (1986), 1986 CanLII 6735 (BC LA), 23 L.A.C. (3d) 357 (Munroe) (Quebec)

-Toronto District School Board and Canadian Union of Public Employees, Local 4400 (W. Grievance) (1999), 1999 CanLII 35841 (ON LA), 80 L.A.C. (4th) 168 (Knopf) (Ontario)

-Toronto District School Board and Canadian Union of Public Employees (G. Grievance) (1999), 1999 CanLII 35886 (ON LA), 79 L.A.C. (4th) 365 (Knopf) (Ontario)

-Re Rolland Inc. and Canadian Paperworkers Union, Local 310 (1983), 1983 CanLII 4940 (ON LA), 12 L.A.C. (3d) 391 (MacDowell)

-Bentler Automotive Canada Corp. Brampton Plant v. Unifor, Local 1285 (Strachan Grievance), [2014] O.L.A.A. No. 45 (Hinnegan) (Ontario)

-Voith Fabrics and U.N.I.T.E., Loc. 720T (Kamara) (Re)(2002), 110 L.A.C. (4th)

62 (Roberts) (Ontario)

-Re Great Atlantic & Pacific Company of Canada and Retail, Wholesale and Department Store Union, Local 414 (1978), 1978 CanLII 3393 (ON LA), 19 L.A.C. (2d) 139 (Burkett) (Ontario)

-Ontario Public Service Employees Union v. Ontario (Ministry of Community

and Social Services) (Aboutaeib Grievance) (2011), 213 L.A.C. (4th) 336 (Johnston) (Ont. GSB)

-Toronto (City) and Canadian Union of Public Employees, Local 79 (Kourtsidis

Grievance), [1999] O.L.A.A. No. 458 (Springate) (Ontario)

-Labourers International Union of North America, Local 506 v. Canadian Waste

Services Inc. (Minto Grievance), [2006] O.L.A.A. No. 89 (MacDowell) (Ontario)

-Culinar Foods Inc. and American Federation of Grain Millers, Loc. 242, Re (1995), 1995 CanLII 18282 (ON LA), 48 L.A.C. (4th) 99 (Brandt) (Ontario)

-Re Bell Canada and Communications Union Canada (1979), 1979 CanLII 3986 (ON LA), 22 L.A.C. (2d) 6

(Kennedy) (Ontario)

-Foothills Provincial General Hospital and A.U.P.E., Loc. 055, Re (1992), 1993 CanLII 16726 (AB GAA), 32 L.A.C. (4th) 95 (Randall) (Alberta)

-Maple Leaf Consumer Foods v. United Food and Commercial Workers’ Union, Local 832 (2004), 2004 CanLII 94623 (MB LA), 134 L.A.C. (4th) 299 (Hamilton) (Manitoba)

-Ontario Public Service Employees Union (Tafesse) and Liquor Control Board of Ontario, GSB No. 2005-1342 (Gray)

-Corporation of the City of Toronto and Canadian Union of Public Employees, Local 79 (Warner Grievance) (1998), 1998 CanLII 30076 (ON LA), 73 L.A.C. (4th) 412 (Craven)

-Ontario Public Service Employees Union (Durnin) and Liquor Control Board of Ontario, GSB No. 2005-3281 (Dissanayake)

-Ontario Public Service Employees Union (Karabegovic) and Liquor Control Board of Ontario, GSB No. 2007-1436 (Kirkwood)

-Ontario Public Service Employees Union (Mance) and Ministry of Health and

Long-Term Care, GSB No. 2009-1107 (Herlich)

-Ontario Public Service Employees Union (Ellis) and Ministry of Finance,

GSB No. 1866-99 et al (Dissanayake)

-Ontario Public Service Employees Union (Savdie) and Ministry of Government

Services, GSB No. 2011-3785 (Harris)

AUTHORITIES RELIED ON BY THE UNION:

-Wall v. The Lippé Group, 2008 HRTO 50 (Mullan)

-United Food and Commercial Workers International Union, Local 175

and Fearman’s Pork Inc. (2011), unreported (MacDowell)

-Kemess Mines Ltd. and International Union of Operating Engineers, Local 115 (2008), 2006 BCCA 58, 264 D.L.R. (4th) 495 (B.C.C.A.)

-Brewers Distributor Ltd. and Brewery, Winery and Distillery Workers Union Local 300 (1998), 1998 CanLII 30113 (BC LA), 76 L.A.C. (4th) 1 (Munroe)

-Clean Harbors Canada Inc. and Teamsters Local Union No. 419 (2013),

234 L.A.C. (4th) 115 (Knopf)

-Kemess Mines Ltd. and International Union of Operating Engineers, Local 115 (2005), 2005 CanLII 94073 (BC LA), 139 L.A.C. (4th) 305 (Munroe)

-York Region District School Board and Canadian Union of Public Employees, Local 1196 (2004), 2004 CanLII 94625 (ON LA), 128 L.A.C. (4th) 317 (Craven)

-Uniroyal Goodrich Canada Inc. and United Steelworkers of America, Local 677 (1999), 1999 CanLII 35843 (ON LA), 79 L.A.C. (4th) 129 (Knopf)

-Complex Services Inc. and Ontario Public Service Employees Union, Local 278

(2012), unreported (Surdykowski)