Booze on the breath doesn’t warrant firing

Sending transit worker home was reasonable, termination was not: Arbitrator
|Canadian HR Reporter|Last Updated: 08/14/2012

A Toronto transit employee who was fired after supervisors smelled alcohol on his breath at work has been reinstated by an arbitrator.

Mark McIlroy, 36, was a spare, non-clerical employee at the Toronto Transit Commission (TTC) who was hired in 2005. He was a part-time worker who performed the duties of several jobs, depending on what work was available on a day-to-day basis.

On May 4, 2010, McIlroy was scheduled to be a ticket agent order driver, which involved driving around the city distributing transit tickets, tokens and passes to stores and other vendors who sold the items.

When McIlroy showed up for work on the morning of May 4, 2010, another TTC employee thought McIlroy smelled of alcohol. Since he was about to get behind the wheel of a work vehicle, she reported it to a supervisor.

The supervisor went to the loading dock and found McIlroy getting out of a car he had backed up to the loading dock. She moved closer to his face and could smell a strong odour of alcohol, despite the fact McIlroy was trying not to exhale — or so she thought.

The supervisor also claimed McIlroy had bloodshot eyes, though he didn’t show any other characteristics of intoxication.

Sobriety tests not part of policy

The TTC’s policy in such circumstances was not to resort to sobriety tests, but rather to have the supervisor confirm the observations with another. As such, the supervisor arranged for someone else to take over McIlroy’s route and called for another supervisor to check him out, along with a union steward.

Before the union steward arrived, the second supervisor smelled McIlroy’s breath and detected a “light scent of alcohol.”

She asked him to breathe out again, but McIlroy resisted.

When the union steward arrived, McIlroy’s supervisor conducted a disciplinary interview. McIlroy denied being intoxicated and said he had consumed a couple of bottles of beer the night before but went to bed around 10 p.m.

The supervisor was skeptical since, if he was telling the truth, she shouldn’t have smelled alcohol on his breath 11 hours later. Concerned about public safety with McIlroy driving, the supervisor relieved McIlroy of duty.

The union steward asked for McIlroy to be reassigned to non-driving duties but the supervisor didn’t think he was fit for any duties and sent him home.

Delayed test came back clean

McIlroy and the union steward agreed he should have a test done to determine if he was intoxicated, but could not get one done until several hours later. The test came back clean but couldn’t help with any determination as to his condition earlier that morning.

Meeting held to decide on discipline

The next day, May 5, TTC management held a meeting with McIlroy to decide the extent of his discipline.

TTC policies and the collective agreement prohibited operating vehicles while intoxicated and a condition of employment when McIlroy was hired was to arrive for work fit for duty and not under the effects and after-effects of alcohol or drugs.

The TTC felt McIlroy had violated these conditions and did not tell the truth, so it terminated his employment.

McIlroy denied he had consumed alcohol that morning and said he didn’t shower or eat before coming to work, but didn’t have any other explanation as to why a co-worker and two supervisors could smell alcohol on him.

He also claimed he had no problems driving to work that morning.

Odour of alcohol likely: Arbitrator

It was likely there was an odour of alcohol on McIlroy’s breath since three people reported smelling it, and this gave the supervisor reasonable grounds to suspect McIlroy had consumed alcohol that morning, according to the arbitrator. Suspicions would have been strengthened by McIlroy’s apparent reluctance to exhale, said the arbitrator.

However, it was questionable whether this meant McIlroy violated the TTC’s policy, which referred to impairment as “the modification of an individual’s physical, mental or cognitive functioning resulting from the use, ingestion or inhalation of alcohol, illicit drugs or medication, and which adversely affects the performance or behaviour of this individual.”

Though there was suspicion McIlroy had consumed alcohol that morning, there was no evidence he was unable to perform his job, said the arbitrator.

McIlroy’s efforts to get a test done, though too late to be of use, showed good faith to prove he wasn’t intoxicated, said the arbitrator.

In addition, the second supervisor did not observe that McIlroy’s eyes were bloodshot, nor was there any indication McIlroy showed signs of impairment.

Therefore, while reassigning McIlroy’s duties and sending him home was a reasonable decision to “err on the side of caution” based on the TTC’s concern for public safety, there was no proof he was actually impaired. As a result, dismissal was too heavy-handed, said the arbitrator.

The TTC was ordered to reinstate McIlroy with no loss of seniority or pay, and the day he was sent home was to be considered a non-disciplinary administrative suspension on his record.

For more information see:

Toronto Transit Commission v. A.T.U., Local 113, 2012 CarswellOnt 220 (Ont. Arb. Bd.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com. You can also read his weekly blog on employment law issues at www.hrreporter.com.

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