The grievor had been drinking when he was called in to work. However, he came anyway. Later, when his behavior attracted the attention of a supervisor, he was tested and found to be impaired. He was not addicted and his short service and blemished record did not prompt the Arbitrator to mitigate the penalty.
Breath-tested at work following a minor fracas with a crewmate, a maritime worker was fired after tests registered his blood alcohol content at about 0.037 per cent.
Q.D. began working in 2004 for a company that operated a maritime ferry service. The job offered year-round employment but less than full-time hours. He worked alternately as a Freight Handler/Stevedore and Traffic Director. The job was considered safety-sensitive.
There was a letter of discipline on his record for speaking inappropriately to a co-worker and questioning a supervisor when he was fired on Dec. 10, 2009.
Q.D. also had two convictions for impaired driving: one from 2006 and a second from 2009 that required him to serve a jail sentence on weekends.
As the operator of a ferry service, the employer had an abiding interest in workplace safety. The employer also had a comprehensive workplace Alcohol and Drug Policy.
Under the policy, workers in safety-sensitive jobs were deemed to be unfit for service and would be sent home if their blood alcohol content was within the range of 0.02 to 0.039. A blood alcohol content of 0.04 or above was considered a violation of the policy and could be grounds for termination.
The policy also required workers to decline unexpected or emergency call-ins if they were under the influence of alcohol.
Altercation with co-worker
Q.D. worked the 6 pm to 2 am shift on Aug. 20, 2009. During a slack part of the shift, Q.D. took it upon himself to wash a co-worker’s car by hosing it down with a fire hose. An altercation with the car’s owner ensued when it was discovered that Q.D. had inadvertently sprayed the inside of the vehicle.
A supervisor investigating the incident suspected Q.D. was under the influence of alcohol.
Q.D. was tested twice for alcohol between 11:30 and 11:45 p.m. His tests revealed a blood alcohol content that measured 0.037 and 0.034 in the respective tests. The employer’s view was that for Q.D. to post those levels at that time indicated that he was likely over the “legal limit” of 0.08 when he reported for work.
An investigation was conducted. A doctor specializing in substance abuse issues assessed Q.D. and determined he did not meet the criteria for alcohol dependence.
Q.D. was fired.
The union grieved. The essential facts were not in dispute. Q.D. was not scheduled to work that day. However, he was called in and he reported for work when he should not have. He made a mistake and discipline was warranted but discharge was too severe a penalty, the union said.
Q.D. had accepted responsibility for his actions and had apologized. Q.D. was coming to the view that perhaps he did have an alcohol dependency. However, he was not entirely candid with the doctor he consulted because he believed he had a better chance of getting his job back if he convinced the doctor that he did not have a drinking problem.
Safety a core concern
The employer took the case very seriously. Safety was a core concern underscored by the company’s statutory responsibilities and the liability of its officers. The facts were not in doubt and Q.D.’s transgression was significant. There was no evidence that Q.D. suffered from an alcohol dependency that required accommodation. He was not a full-time employee, he had less than five years with the company and there were no particular mitigating circumstances. Termination was warranted in the circumstances, the employer said
The Arbitrator agreed. Q.D. was involved in a workplace altercation. Breath tests indicated he began his shift while under the influence of alcohol. This was a violation of employer policy. There was no question the employer was entitled to discipline Q.D. The only question was whether or not the penalty was reasonable in the circumstances.
The Arbitrator said it was.
“[T]he Grievor had neither a previous good record of employment nor long service of employment. The event was not an isolated incident because the Grievor had been disciplined previously. There is no evidence of provocation. The Grievor, while at work and under the influence of alcohol, damaged a fellow employee’s car and an altercation resulted. The company’s policy relating to alcohol and the workplace was violated. The Grievor breached his employment obligations. Prior to termination, the Employer acted responsibly by referring the Grievor to a physician with experience in drug and alcohol addiction for an assessment. The physician opined that the Grievor did not meet the diagnostic criteria for alcohol dependency.”
The grievance was dismissed.
