The disappearing transit worker (Legal view)

Worker regularly left to have a few beers, hang out with friends

Nelson Wall was scheduled to work from 8:30 p.m. to 5 a.m. as a car house cleaner at the Toronto Transit Commission’s (TTC) Greenwood maintenance yard. But that didn’t mean he felt compelled to stay at work for his whole shift. In fact, he habitually left work to meet his buddies and hoist a few beers at local watering holes. Although he made no secret of his activities, he had been disciplined only once. When an anonymous source added allegations of theft to the ongoing accounts of Wall’s misdemeanours, it was time for the TTC Special Constables Criminal Investigations Unit to get involved.

During the investigation into the theft, surveillance teams followed Wall when he left work mid-shift. He went home, changed clothes and headed to a country and western bar where he played pool and drank a couple of beers before returning to work. A few days later he was seen at another bar during working hours enjoying a basket of chicken wings, fries and two bottles of beer. This time he was accompanied by a woman he had picked up earlier at a private residence. They left just before 1 a.m. and, a few minutes later after dropping her off, he was back at the TTC yard. This time he was detained by the special constables, who called his supervisor John Dotzko to meet him at the gate.

Wall explained to Dotzko that he had taken off because of a sudden family emergency. Dotzko accepted his excuse at face value and allowed him to go home. His superintendent, Jim Fraser, was not so sanguine. Although he did not want to compromise the criminal investigation, he could no longer ignore the reports of Wall’s drinking on the job. He called a disciplinary meeting and fired him on the basis of his prior discipline, his previous unauthorized absences and the two incidents of consuming alcohol while on duty –– a terminable offence under the collective agreement.

The union launched a grievance, which ended up in arbitration. It argued Wall was suffering from the illness of alcoholism and his termination was discriminatory under the Ontario Human Rights Code. The arbitrator agreed with the former argument, but not with the latter. The dismissal was upheld.

There were several hoops to jump through, however, before this decision could be reached. The union argued that since his behaviour had been condoned by Dotzko, his line manager, higher levels of management could not discipline him further. The arbitrator dismissed this view for two reasons. When Dotzko had let Wall off the hook, he did not know Wall was misrepresenting events. Not only that, but the first incident witnessed by the investigators was sufficient to dismiss him.

At least it was sufficient if the arbitrator was not allowed to substitute a lesser penalty for the termination. The parties had expressly agreed in their collective agreement that drinking on the job would result in discharge. But was such automatic termination discriminatory under the Human Rights Code? Did Wall suffer from alcoholism? Should he be accommodated, not fired?

In the disciplinary meeting leading to his termination, Wall vehemently denied he was an alcoholic, but now he admitted to being awash in alcohol. Shots of liquor before breakfast and at lunch, a mickey of vodka kept in his car for “pick-me-up toots” and sneaking out from work to drink at bars. This was apparently his habit, especially during the previous six months. He said his alcohol dependency had led to earlier brushes with the law and the eventual break-up of his marriage.

The problem was his work record was clean. Wall had taken only five sick days in seven years and had excellent reports on his work from his supervisors. Not only that but, after his discharge, he cut back on his drinking even before he sought treatment for alcoholism. Both his daughter and his sponsor at Alcoholics Anonymous said he didn’t seem to be drinking as much as before. Counsel for the TTC suggested he was just a heavy drinker, not an alcoholic.

The arbitrator applied several standard tests used for screening and diagnosing patients with alcohol use disorders (the CAGE test, the Alcohol Use Disorders Identification Test and the Michigan Alcohol Screening Test). He admitted he was unsure of the medical or legal significance of the distinction between alcoholism (classified as an illness) and alcohol abuse (not so classed) but concluded Wall did in fact suffer from the illness of alcoholism.

But did Wall’s disease cause him to be absent without leave on the dates in question? Should he therefore be reinstated and accommodated under the Ontario Human Rights Code? The arbitrator said no. Wall’s judgment had not been so impaired by his craving for alcohol or by his loss of control that his alcoholism was the overriding motivating factor in his out-of-bounds behaviour. Far from it. The arbitrator noted Wall, as observed by the special constables, “was not driven to drink beer after beer.”

Wall acknowledged he had no strong craving for alcohol and experienced no severe withdrawal symptoms when he wasn’t drinking. The arbitrator concluded these factors “reduced the compulsion within (him) to resume or continue drinking.” When he went to bars, it was not under the compulsion to have a drink but simply because he wanted to play pool or chat with his friends. He had a couple of drinks to be sociable, that was all. His employer had not discriminated against him illegally in firing him. The grievance was dismissed.

For more information see:

Toronto Transit Commission v. A.T.U., Local 113, 2006 CarswellOnt 3269, [2006] L.V.I. 3641-3, 148 L.A.C. (4th) 69 (Ont. 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].

Collective Agreement
What justifies dismissal at the TTC?

Section eight of the collective agreement between the Toronto Transit Commission and the Amalgamated Transit Union, Local 113, sets out four offences where the employer may impose the specific penalty of discharge:

•theft from the commission (except theft of goods having a nominal value);

•consuming an intoxicating beverage or drug for other than medicinal purposes while on duty;

•being impaired while on duty by reason of consumption of an intoxicating beverage or drug for other than medicinal purposes; and

•being in possession of an intoxicating beverage or drug for other than medicinal purposes while on duty.

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