Two supervisors presented subjective and inconsistent testimony that the grievor had been intoxicated at work. The arbitrator held that, while they were justified in sending him home, his termination could not be supported.
A transit worker was relieved of duty and sent home after a supervisor smelled alcohol on his breath. He was fired the next day for being impaired at work. The union grieved.
M.M. worked for a municipal transit authority as a ticket agent/order driver. He had five years’ service when he was fired. There was no discipline on his record.
On the morning of May 4, 2010 — just before he was to head out in a company car to deliver supplies to ticket booths — a supervisor approached M.M. on the loading dock.
The supervisor said that a co-worker had reported that M.M. “reeked” of alcohol. The supervisor asked M.M. if he had been drinking. She smelled his breath and then sent him to wait in her office.
M.M. accepted the offer to have a union steward present. In the meantime, another supervisor came and confirmed a light scent of alcohol on M.M.’s breath. M.M. continued to deny he had been drinking that morning. He said he had consumed about four tins of beer the previous evening.
When the steward arrived, M.M. was relieved of duty. The supervisor refused the steward’s request that M.M. be reassigned to non-driving duties. The union grieved the employer’s action in relieving M.M. of duty.
A step one grievance meeting was held the next day to determine the appropriate discipline for M.M. A senior manager present reviewed the applicable policies and asserted that it was unlikely that two supervisors would have been able to detect alcohol on M.M.’s breath if he had consumed no alcohol for 11 hours as he claimed.
Bloodshot eyes
One of the supervisors also claimed M.M.’s eyes were bloodshot. M.M. was fired for being impaired at work contrary to specific provisions in the collective agreement, which provided for termination for being impaired while on duty.
Before the Arbitrator, the union argued first that the employer had violated M.M.’s right to representation and that the discipline should be void.
The union said M.M. had been “ambushed” — that the supervisor had discipline on her mind when she approached M.M. on the loading dock and he should have been offered union representation then. At that point, the union said, the employer crossed the line between fact-finding and contemplating discipline. The employer had violated M.M.’s rights in the process.
Second, the case failed on its merits because the employer had not met the onus on it to show that M.M. was impaired, the union said.
The Arbitrator rejected the union’s charge that M.M. had been denied his rights to representation. The first supervisor on the scene may have had it in her mind that M.M. would be disciplined if another supervisor confirmed her assessment of M.M.’s condition. However, the Arbitrator accepted M.M. would not have been disciplined if the second supervisor detected no alcohol on his breath. As well, there was no solid evidence to show either that M.M. was questioned before the steward arrived in the office or that any request for representation made by M.M. was denied.
Weak basis to infer impairment
The case failed on its merits. The Arbitrator accepted that the threshold for a finding of impairment may be lower for workers like M.M., who are in safety-sensitive jobs. “However, in my view, even accepting at its best the [employer’s] view of the evidence on these matters, there is no indication of demonstrable impairment. Nor does the evidence, even at its best, provide anything but a very weak basis on which to infer impairment in the absence of some indicator beyond the smell of alcohol.”
There were no allegations of slurred speech, belligerence, poor balance, rambling or incoherent speaking or boisterousness, the Arbitrator said.
There was an allegation M.M.’s eyes were bloodshot, but that was not corroborated by the second supervisor or remarked on the initial disciplinary notes. Even if true, it is doubtful a finding of bloodshot eyes in the circumstances would be enough to tip the balance in favour of a finding of impairment, according to the Arbitrator.
“The [employer] makes the legitimate point that an employee does not have to be falling-down drunk to be impaired, but I cannot conclude that there is an impairment without evidence of a ‘modification of an individual’s physical, mental or cognitive functioning’ — as stated in [the employer’s] own definition of impairment.”
In the circumstances, the supervisor was right to relieve M.M. and send him home, the Arbitrator said, but the employer went too far when it fired him.
“[T]here is a distinction in the proof needed between, on the one hand, a decision to remove an employee from the workplace because there is some doubt as to whether safety might be compromised by having the employee work, and, on the other hand, a decision to discipline or even terminate an employee for being impaired on the job, which requires clear evidence.”
The grievance was accepted. M.M. was reinstated.
Reference: Toronto Transit Commission and Amalgamated Transit Union Local 113. Lorne Slotnick — Sole Arbitrator. Carlo Di Giovanni for the Union. Marni Tolensky for the Employer. Jan. 9, 2012. 30 pp.
