The grievor had been disciplined earlier for arriving at work intoxicated and, when his supervisor believed he had done so again, he was fired. The arbitrator found that the supervisor's investigation had been inadequate for several reasons and voided the discipline.
A worker previously disciplined for being drunk at work was fired on the spot after he allegedly reported for work intoxicated a second time, six months later.
B.N. worked as a lead hand and forklift operator at a company that refurbished and recycled wooden pallets.
B.N.’s job was clearly safety-sensitive: he was principally responsible for moving large stacks of pallets around the facility, which involved navigating a forklift safely through enclosed spaces while avoiding pedestrian traffic and other machines. B.N. had about 20 years’ service with his employer when he was fired on Jan. 26, 2010. There was discipline on his record.
On Aug. 4, 2009, B.N. reported for work hungover and still impaired after a night at a family function where he drank five beers, three glasses of wine and two whiskeys.
Eccentric parking
Video surveillance tape documented B.N.’s 11:30 a.m. arrival at work for his shift, which wasn’t scheduled to start until 3:30 p.m. B.N. parked his car eccentrically and staggered into the plant. B.N. was noticeably slurring his words and he smelled strongly of alcohol. B.N. ultimately acknowledged that he was impaired from drinking the night before.
Explicit prohibitions against being impaired at work were spelled out both in the company’s Drug and Alcohol Policy and in the collective agreement.
B.N. was suspended indefinitely pending his attendance at a rehabilitation program. B.N. completed a program and returned to work after about three weeks.
Approximately six months later, a manager was tipped off that an employee on the afternoon shift was drunk.
The manager investigated. B.N. was brought to the shift supervisor’s office. B.N. was observed to be swaying on his feet. His speech was garbled and his eyes were bloodshot. However, the manager did not report a smell of alcohol emanating from B.N.
Two union stewards were summoned. When they arrived, the manager announced that B.N. was being terminated on the spot for being intoxicated at work.
The union grieved the termination and the earlier suspension.
The Arbitrator upheld the earlier suspension, ruling that the evidence supported the discipline that was imposed.
However, the Arbitrator said, the evidence for the second incident did not stand up and the employer was unable to meet the onus on it to establish on a balance of probabilities that B.N. was intoxicated at work on Jan. 26, 2010.
Unlike the first incident, B.N. denied that he was impaired and denied even that he had been drinking.
The onus in this case was on the employer to establish that B.N. was intoxicated at work as alleged. The employer failed to make its case.
Contradictory testimony
The evidence of the two union stewards was contradictory. One judged B.N. to be impaired. The other did not. However, neither testified that they could smell alcohol on B.N.’s breath.
The Arbitrator accepted that the manager’s testimony about B.N.’s apparent impairment was credible as far as it went, but the manager was also unable to testify to smelling alcohol on B.N.
However, the Arbitrator said, the key problem with the employer’s case was that the investigation conducted by the manager was so deficient that B.N. was deprived of any chance to prove his sobriety.
The manager failed to follow any of the key steps, which the Arbitrator said should have included:
• Reviewing any available surveillance video;
• Making a proper effort to smell B.N.’s breath;
• Seeking other assessments of B.N.’s condition;
• Conducting objective sobriety tests;
• Taking notes about the incident; and
• Deferring a decision about punishment until the incident could be reviewed by others.
It was not enough for the manager to simply satisfy himself that B.N. was impaired, the Arbitrator said. The manager should have done more to gather the objective information necessary to be able to make a judgment later about whether or not B.N. was under the influence of alcohol at work.
“In a situation like this, where it is easy to obtain relevant objective facts, it is unfair to the employee to make this into a case of ‘he said X, he said Y’ by not conducting a thorough investigation… I honestly do not know whether or not [B.N.] was inebriated that day or not. However, the onus of proof is on the Company to prove this point on the balance of probabilities and in my judgment they have failed to do so.”
The grievance was allowed. B.N. was ordered reinstated with full back pay and no loss of seniority.
Mark Rogers is a writer and editor who specializes in labour relations and occupational health and safety.
