No candy-coated outcome at the chocolate factory (Arbitration)

Arbitrator upholds employer’s decision to send worker, who smelled of liquor, home without pay

Tom Cleary, a machine operator with 10 years’ seniority at a Hershey chocolate factory in Dartmouth, N.S., arrived for his afternoon shift smelling of alcohol. At least that’s what Richard Harris, the processing supervisor, thought when he saw Cleary 15 minutes before his 3 p.m. shift began.

Cleary insisted he hadn’t had a drink since 1 a.m. and attributed his glassy-eyed appearance to the fact he had slept poorly. Following company policy, Harris asked another supervisor, Matthew Huntley, for his opinion. Initially Huntley didn’t concur, but after Harris closed the office door, he agreed there was a strong smell of alcohol coming from Cleary.

Cleary was sent home and docked one day’s pay. According to an apparently well-known company policy, employees were to be sent home if they came to work smelling of liquor. They were not paid for the missed shift, but no other discipline was imposed.

Although Cleary had not filed a grievance on the two previous occasions when he had been sent home in similar circumstances, he did so this time because he felt harassed and was annoyed. The union argued he should have received eight hours’ pay because it said the company’s policy was not posted. It said Cleary was not drunk and had been unfairly treated as another employee, sent home smelling of alcohol several months later, had been paid. Also, the union noted for the first time at the hearing, that no union representative was present at the meeting when Cleary was sent home.

Even though the company policy on coming to work smelling of alcohol had not been properly posted, the arbitrator nevertheless found Cleary knew what the policy was. This was chiefly because Cleary himself testified to that fact. When he had been sent home the first time, in September 2002, he said he knew of the policy. On that occasion he was called in on overtime, had stopped drinking only six hours before and had readily agreed he probably smelled of alcohol.

This time was different, however. Cleary had made a conscious decision four years before not to drink within 12 hours of his next shift. Although he spent time in a tavern across the street before work, he did not drink. He spent that time playing electronic games until the start of his 3 p.m. shift. On this particular occasion he admitted to drinking, but only the night before.

The arbitrator said sending Cleary home was not only consistent with both “reasonable cause” and “just cause” but was also justified from a safety point of view. The chocolate enrobing conveyer belt he worked on frequently needed to be cleaned as it would get sticky, and the whole process of coating the candy involved many processes, temperature changes and moving parts.

On the question of whether Cleary was sent home without pay, when several months afterwards another employee smelling of liquor received his eight hours’ pay, the arbitrator noted the other worker was sent home “for reasons of hygiene.” According to the evidence presented by Richard Carter, a stand-in human resources manager, the other worker’s grievance was allowed because Carter understood the matter to be hygiene-based, not safety-related. This despite the fact supervisor Huntley had originally disallowed the grievance by pointing to the policy in force concerning employees who show up at work smelling of alcohol. But, according to Carter, the later worker had shown no signs of intoxication and had been sent home because the supervisors had apparently smelled alcohol “coming from his pores rather than on his breath.”

Was Cleary’s being sent home tantamount to discipline? The arbitrator said no. It was an administrative suspension, not a disciplinary one. Although the arbitrator had misgivings about disentitling a worker to one-fifth of his weekly income, he agreed the decision was made in good faith and not as a way of circumventing the discipline provisions in the collective agreement requiring proof of a “just” or “reasonable” cause. There was simply no work Cleary could have safely done that day.

As to the 11th-hour charge made at the arbitration hearing that the employer improperly denied Cleary union representation, the arbitrator found it was too late to go down that route. The grievance was not made on that basis to begin with. As a result, the arbitrator found it could not be used in the hearing he chaired.

For more information see:

B.C.T.G.M., Local 446 v. Moirs Division, Hershey Canada Inc., 2006 CarswellNS 38, [2006] L.V.I. 3613-2 (N.S. Arb. Bd.)

Lorna Harris is the assistant editor of Canadian HR Reporter’s sister publication CLV Reports, newsletters that report on collective bargaining and other issues in labour relations. She can be reached at (416) 298-5141 ext. 2617 or [email protected].

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