Back in February I wrote about a case where Mitigating Circumstances Not Enough to Reinstate in a Theft Case.
I recently came across a case where the Ontario Labour Relations Board in a grievance referral under section 133 of the Ontario Labour Relations Act, 1995 reinstated an employee who was terminated for driving a company vehicle while under the influence of alcohol. The case is Labourers' International Union of North America, Labourers' International Union of North America, Local 493 v Hydro One Inc, 2014 CanLII 66579 (ON LRB).
The employee was charged with driving under the influence and ultimately convicted of the offence.
As it turned out, the employee was an alcoholic. Prior to his conviction, he had sought treatment and concluded the program. The discharge report indicated, among other things, that he succesfully completed the program and “openly addressed his history of substance abuse and the impact it had on his life and that of others, as well as his “relationship and boundaries issues”.” The report further noted that he had agreed to an after-care plan and a variety of clinical recommendations.
As in all discipline cases where no specific penalty is provided in the collective agreement, the adjudicator follows a two step process:
- whether or not the company had cause to discharge (or discipline) the grievor; and
- if it did, the next issue is whether or not the adjudicator should substitute the discharge (discipline) with a less severe penalty.
The second issue involves an assessment of all of the surrounding circumstances and a variety of well established mitigating factors or unique or extenuating circumstances.
In this case, Vice-Chair Kelly held that the employer had just cause to discharge the grievor from his employment. He reviewed a number of decisions on point. This being said, Vice-Chair Kelly concluded as follows:
In my view, having regard to what the grievor did on August 9, 2012, the company had cause to discharge him from employment. It was extremely serious, and potentially lethal misconduct. However, when all things are considered, including that the grievor was an alcoholic at the time of the incident, I consider it just and reasonable to substitute the discharge with a lesser penalty.
He considered, among other things, the following mitigating factors:
- a clean disciplinary record
- a “fairly substantial” amount of service
- the grievor appeared to recognize the seriousness of his misconduct in driving impaired and he admitted an addiction
- he sincerely apologized
- he immediately took steps to deal with his adiction (though, according to the Vice-Chair, he had not done enough yet)
- the evidence was that he has remained sober
In terms of aggravating factors:
The grievor put his safety and the safety of the travelling public at grave risk. He exposed the company to potentially massive liability and harmful publicity. Also, albeit on a much smaller scale, the company lost the use of the impounded vehicle for a period of time.
In the end, the Board found that the mitigating factors outweighed the aggravating factors. The Board reinstated the grievor on conditions including a specific penalty in the event of breach.
The Moral of the Story
To state the obvious, these are complicated cases that require a deft balancing of important corporate and individual interests. In the end, the Board, in this case, found that the personal mitigating circumstances outweighed the extremely serious corporate concerns. The Board believed, obviously, that this employee deserved a second chance and, clearly, this will not be so in every case.
That being said, the case emphasizes that discharge is not automatic and that even where extremely serious misconduct is proven a consideration of all surrounding circumstances must be considered. These are tough cases, and the result will often come down to intangibles that are unpredictable at the outset, including the demeneour of the grievor and the discretion of the particular adjudicator. These are not thinks that are known at the time of termination but clearly, as in this case, determined the outcome.