The grievor reported to duty in an impaired state after being called in. His repeated and consistent dishonesty in denying his condition left the arbitrator with no reason to rescind the termination, despite the grievor's long service and good record.
A bus driver was suspended and later terminated after it was determined he had reported for duty in an impaired state.
Specific penalty clauses in the collective agreement mandated termination for a number of offences, including being impaired while on duty.
The union grieved, arguing that the worker was not impaired.
A.J. had 20 years’ service working as a bus driver for a large metropolitan transit authority. In September 2010, A.J. was working evening shifts from 6 p.m. to about 3 a.m.
Though he had indicated he was willing to work some shifts on his off-days, which were Thursday and Friday (Sept. 16 and 17), A.J. felt ill and called in sick on the Thursday, which he had booked.
A.J. awoke Friday at about 9 a.m. He worked on some domestic tasks between 10:30 a.m. and 12:30 p.m., during which time he drank four beers.
At 12:30, A.J. took a call from work asking him to report for duty by 6 p.m. A.J. accepted and then napped between 1 p.m. and 4 p.m. A.J. reported for work on Sept. 17 at 5:20 p.m.
When he arrived at work, A.J. encountered the wicket clerk. The clerk checks drivers in and assigns vacant shifts as needed. A.J. and the wicket clerk had known each other for about 15 years.
Covered his mouth
The clerk asked A.J. about his availability for some upcoming shifts. A.J. covered his mouth when he talked. He was evasive and, according to the clerk, overly anxious to get away.
The clerk thought he smelled alcohol when talking to A.J. He became concerned and sought him out again a few minutes later to confirm his suspicions.
The clerk concluded that A.J. had been drinking. He called a supervisor. A.J. was intercepted by a mobile supervisor and brought back to the Area Superintendent’s office at the station.
The superintendent asked A.J. if he had been drinking before reporting for work. A.J. said he had not. Both the superintendent and the mobile supervisor then smelled A.J.’s breath. A.J. was then asked to wait in a nearby conference room. The union steward was called and a meeting was held after he arrived.
A.J. again denied he had been drinking. The steward requested A.J. be allowed to go home because he was sick. The steward said he was unable to detect the scent of alcohol on A.J., though two other supervisors who were summoned said they could. Asked again if he had been drinking, A.J. said he had not consumed any alcohol for the previous four months and he had come to work straight from prayer at the mosque.
A.J. was directed to return to the conference room to fill out an incident report. The steward accompanied him. A.J. then admitted to the steward he had consumed two beers.
Two police officers were in the Superintendent’s office when A.J. and the steward returned to reconvene the meeting.
The steward affirmed A.J. was admitting now to drinking two beers before work. Then, the two beers became four beers. A.J. was asked to take a breathalyzer test. A.J. refused.
A.J. was relieved of duty and later fired. The union grieved.
The termination was upheld.
Credibility a key factor
Credibility was a key factor in the case. A.J.’s story did not add up, the Arbitrator said.
A.J. said first he was sick and any perceived impairment was due to prescription medications. He then acknowledged he was not taking prescription medications. He was adamant he had not been drinking and he had consumed no alcohol for four months. He said he had come to work straight from praying at the mosque. This was not true. These were lies for the purpose of projecting an image that A.J. was too religious to drink.
A.J. refused to take a breathalyzer. At step one of the grievance procedure, A.J. reportedly acknowledged his error and apologized for his mistake. Then he recanted, stating he only apologized for going in to work when he was not feeling well.
The Arbitrator acknowledged that there were some omissions in the supervisors’ reports of the incident. While they all testified that A.J.’s eyes were glassy and that his speech was slurred, these observations were not recorded in the reports, which focused mostly on the strong smell of alcohol coming from A.J.
Nevertheless, the testimony was consistent, the Arbitrator said.
“A.J. insisted that he was not impaired when he reported for work and never conceded that he had made any mistakes on Friday, Sept. 17, 2010. He never admitted that drinking four beers, then accepting a call to report to work shortly afterwards with the intention of driving a Commission bus carrying members of the public… might not have been a good decision. He never acknowledged that he made a mistake or admitted any wrongdoing. He did not apologize for these actions during his testimony before me. It is certainly not clear to me that given the chance he would not do the same thing again. Frankly, it is one thing for him to refuse to admit that he was impaired (which would trigger the specific penalty clause), but quite another for him to not admit before me that he made some mistakes and apologize for them.”
The grievance was dismissed.
