Discipline didn’t seem to change employee’s ways and he refused assistance through employer’s EAP
Making bad choices not a disability
When it comes to an employee with a drinking problem there can be a fine line between someone with alcoholism — a disability requiring accommodation — and someone who just makes bad decisions in his life. An employee of the Royal Canadian Mint in Winnipeg discovered that living one’s life a certain way that resulted in numerous problems with attendance at work is not necessarily a sign of illness that the employer should have recognized — especially when the employee refused assistance offered by the employer on multiple occasions.
An arbitrator has upheld the dismissal of a troubled Royal Canadian Mint employee who missed a mediation regarding his harassment complaint — the latest in a string of absences —against a manager and his excuse rang a little hollow.
Clinton Izzard worked for the Royal Canadian Mint in Winnipeg for 17 years, becoming a lead hand in the mint’s blanking and rimming area. He was responsible for looking after several employees during production, including checking that the machinery was safe and training employees. Due to the large coils of steel moving around and high-speed blanking presses used, the position was safety-sensitive.
Because of the nature of the facility, the mint had a no-tolerance drug and alcohol policy. Employees were prohibited from coming to work under the influence of alcohol and, for jobs that were particularly safety-sensitive such as Izzard’s, employees were prohibited from consuming alcohol before work and during breaks. The mint tried to accommodate anyone who had an addiction by promoting a treatment program though its employee assistance program (EAP). Employees who sought help through the EAP were not disciplined.
Frequent absences and tardiness
Izzard had an ongoing problem with attendance and lateness for work, which was cause for concern for the mint since absences created staffing problems that could affect production. In particular, Izzard’s status as a lead hand meant an absence would be more problematic and set a poor example. The mint tried to accommodate employees who needed time off as much as possible, but required employees to give as much notice as they could for absences and lateness because of the staffing and production concerns.
Under the collective agreement, disciplinary records on employees could not be kept after two years passed. However, over a period of 16 months, from January 2008 to April 2009, Izzard had numerous instances of absence or lateness on short notification. According to the supervisor’s log book, these included:
•“Phoned will be late” 10 times
•Called in sick 18 times
•Went home sick twice
•“Phoned won’t be in” once
•Late without calling once
•“No call no show” twice
•Called requesting a day or morning off seven times
•Called in to say he would be an hour late and was actually four hours late on one occasion, and was 2.75 hours late after calling to say he would be 1.5 hours late on another occasion
•Called to say he would be late but never showed up for work
•Called in to say he had car trouble and couldn’t make it twice
•Came in late and left early once
Izzard was paid for some of the hours missed due to lateness, as the mint put them down as medical appointments. However, on the occasion when he was four hours late, the mint recorded it as leave without pay. Izzard filed a grievance but it was denied.
In March 2008, the mint told Izzard he would have to provide a doctor’s note for any further sick leave after he had accumulated seven sick days. Izzard replied that it was his time to use as he saw fit and didn’t have to give reasons. Izzard admitted to his supervisor on a couple of occasions he had been drinking and the supervisor smelled alcohol on him, but Izzard refused to discuss his personal problems, which included a rocky relationship with his girlfriend.
On June 8, 2008, Izzard showed up an hour late and his supervisor noticed he smelled like alcohol and was acting strangely. Izzard admitted he had been drinking, but denied being drunk and became belligerent, so the supervisor sent him home. As he left, Izzard said, “I’m going to bury him.” Izzard was suspended without pay for three days, which he grieved but was denied.
On Nov. 1, Izzard showed up almost two hours late with no explanation. He had slurred speech, had difficulty concentrating and smelled of alcohol. Izzard admitted he was drinking the night before but had stopped long before it was time for work. He denied being intoxicated but was sent home and given a 10-day suspension without pay for unacceptable behaviour, creating a serious health and safety risk, and breaching the drug and alcohol policy. He was also given a letter stating he was on his last chance before termination and recommending he seek help through the EAP. Izzard grieved the suspension, but did not raise any concerns that he was addicted to alcohol and it was denied.
The suspension was followed by a written reprimand for not showing up for a shift in January 2009. A performance review held in February noted his skills were good but improvement was needed in several area, including his attitude. The review emphasized his problems with attendance. Izzard attacked the review, stating it was one-sided and his attitude and attendance were not relevance to his job performance. He claimed the review was an intimidation tactic and he eventually filed a harassment complaint against his supervisor.
No-show for important meeting
The mint scheduled a mediation for 8 a.m. on April 22, 2009, which would attempt to resolve the harassment issue. It hired a mediator and booked a hotel at its own expense. However, on the day of the mediation, Izzard was a no-show.
Eventually Izzard called the mint around 3:15 p.m. and explained he had been mugged as he left his home that morning. He claimed his car keys, wallet and cellphone were taken and it was related to his stormy relationship. He barricaded himself in his apartment and didn’t contact anyone — he had no land line — until a knock on his door at 1:30 p.m., after which he discovered his belongings in his mailbox. There was a message from the mint on his phone, asking where he was but he didn’t call for another two hours.
Management was skeptical about Izzard’s explanation for his absence, particularly since he didn’t make any effort to contact the mint for several hours and there were no signs of injury. Izzard said he was sorry but he was suspended pending further investigation and advised to contact the EAP.
On May 6, 2009, the mint terminated Izzard’s employment, citing his failure to report to work or inform it of his absence was a “serious breach of the employment relationship” that was a culminating incident after the instances of poor attendance and intoxication at work. Though he had 17 years of service, the mint felt it couldn’t trust him any longer.
Alcoholism removed some responsibility for misconduct: Union
Izzard and the union argued he was an alcoholic, which contributed to much of his absenteeism and lateness and took away some of his culpability. He said the mint should have been aware of his problem because he had admitted to drinking heavily and smelled of alcohol on several occasions. Izzard also noted that after his dismissal, he sought out treatment and stopped drinking. This recovery would allow the mint to trust him to do his job again, said the union. In addition, Izzard could not be held responsible for the culminating incident because of his state of mind after being mugged, the union argued.
The arbitrator found Izzard’s account of the events on the day of the mediation was “unusual and surprising.” Regardless of his credibility, the arbitrator found there was no reason Izzard could not have contacted his employer to update it on what was happening. He lived near a major street with pay phones and by his own account he didn’t call until two hours after he had his cellphone back. Even though he knew his failure to appear at the mediation would be a serious problem, Izzard did nothing, which was a culpable breach of his obligation as an employee to attend or notify his employer that he couldn’t attend.
“There was no reasonable explanation for waiting several hours while taking no steps whatsoever,” said the arbitrator. “In my view, the whole account defies logic and probability.”
The arbitrator also found that there was no medical diagnosis of alcoholism for Izzard and at no time did he tell the mint he was an alcoholic. Though the mint was aware he drank a lot, there was no reason it shouldn’t have chalked it up to poor life choices, said the arbitrator. On several occasions, the mint recommended to Izzard that he seek help through the EAP, but he refused.
The arbitrator found that the mint was lenient with Izzard and gave him numerous warnings and opportunities to change his behaviour, and he was well aware that his employment was in jeopardy. When he failed to improve, termination became a reasonable solution, said the arbitrator.
“Over a period of less than 18 months, (Izzard) amassed a dreadful disciplinary record, including a 10-day suspension in November 2008,” said the arbitrator. “Supervisors and managers conveyed a message repeatedly that (Izzard) must improve his attendance but (he) was defiant and at times insubordinate in response.”
The fact that Izzard dealt with his drinking problem after his termination didn’t change the fact that his misconduct was serious and he didn’t show true remorse for causing staffing difficulties and safety risks for his employer and co-workers. Instead, he tried to blame the mint for not identifying his problem and repeatedly grieved his discipline, said the arbitrator. With no proven disability, the arbitrator found the mint should not be forced to bear the risk of reinstating Izzard.
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