Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2016 Canadian Employment Law Today | 3 Rude comment, alcohol on breath justifies suspension – not termination Multiple alcohol-related instances of misconduct warranted discipline, but employee deserved one more chance with conditions: Arbitrator BY TODD HUMBER A GROCERY store cashier who was fired after she made rude comments to her su- pervisor after-hours and came to a meeting with management smelling of alcohol has been reinstated. Julie Stapleton began working for Safe- way, a grocery store in Banff, Alta., in 2002 as a part-time cashier. In 2004, she took a full- time position. She served as head cashier for about 18 months before returning to a cash- ier position. On May 26, 2015, Stapleton phoned Ter- esa Gallagher, the manager of the Banff and Canmore Safeway stores, at about 11:45 a.m. while Gallagher was working at the Canmore store. Stapleton was at home, but wanted to talk to her about a co-worker whose parent had passed away. According to Gallagher, Stapleton slurred her words and rambled a lot during the call, which lasted about five minutes. Gallagher told her she had to go, apparently giving her a two-minute warning that the call would end. At that point, Stapleton said: "Everyone in Banff hates you and everyone in Canmore hates you too. I love you, but you gotta be nicer to people." Gallagher was shaken by those comments — she found them to be harsh, unnecessary and very personal. She was off the following day, but when she returned to work she craft- ed an email to Safeway's HR department complaining about Stapleton's behaviour. She outlined conversations she had with Stapleton about absenteeism, tardiness and "the smell of alcohol on her breath on more than one occasion." She outlined the details of what was said during the call, and said Staple- ton "was clearly drunk, rambling and abusive." Gallagher said she wouldn't tolerate any further communication from her, "and I would like to see something done about this, as I am no less privy to protection against ha- rassment as anyone else." Joan Bain, HR manager with Sobeys — the company that owns Safeway — contacted Gallagher and told her she would meet her at the Canmore store. After they met, Bain drove to Banff to meet with managers there and then she phoned April Albrecht, the union representative for the store, to inform her she was there to meet with Stapleton about the phone call to Gallagher. Albrecht phoned in to the meeting. Before the meeting, Bain and the assist- ant store manager had a discussion in the training room. It was stuffy, but there was no odour in the room. When Stapleton came into the room, and the door was shut, Bain started to notice the smell of alcohol. She asked Stapleton if she had been drinking, to which she said, "No, I don't drink." Stapleton's version of the sequence of events kept changing during the meeting. Bain asked if she had been drinking the night before, to which she said: "I had two beers. I was not drunk." By that point, Bain said the smell of al- cohol in the room was overwhelming. She suggested the union representative speak to Stapleton privately, and Bain and the other manager left the room. Bain called Morgyn Ahrens, the labour relations man- ager for Sobey's West. She told her what happened during the interview, and that Stapleton had changed her story three times. Ahrens asked Bains if she thought Stapleton was impaired, and she said yes. Ahrens instructed her to suspend Stapleton on the basis that if she could not function in an interview then she could not function at work. She was told she couldn't drive home, and was offered a taxi cab. Stapleton was adamant she was not drunk and decided to walk home instead. Employee refused last chance agreement requiring treatment After reviewing her personnel file, Ahrens was of the view that Stapleton had an alcohol addiction. A written warning from February 2014 indicated Stapleton had been late on Feb. 2, 3, 4, 9, 11, 14, 15, 16, 17 and 21. On one occasion, Gallagher smelled alcohol on her breath while discussing the tardiness with her. Ahrens told the union Safeway was will- ing to put her on a last chance agreement under the condition she seek treatment for her alcohol problem. e union replied that Stapleton was not willing to accept that of- fer, and Ahrens recommended termination. Stapleton was fired on June 23, 2015. e arbitrator took an in-depth look at numerous issues in the case. He decided the employer had just cause to discipline Staple- ton for the inappropriate comment, calling it "rude, disrespectful, insulting and hurtful." But he couldn't conclude she was drunk during that phone call, because there was simply no evidence other than Gallagher's opinion. Stapleton immediately admitted she made the rude comment, expressed regret and offered to apologize. She had a lengthy service record with only a written warning for tardiness. erefore, only a one-day suspen- sion was justified for the comments. e arbitrator then looked at the June 1 meeting where she reeked of alcohol — rul- ing that she did indeed have the smell of alco- hol on her and on her breath, in violation of the company's drug and alcohol policy. But he stopped short of finding Stapleton was drunk. For breaching the policy, he decided a one-week suspension — on top of the day for the comment — without pay was warranted. He ordered her back to work with compen- sation and no loss of seniority. e arbitrator also noted that a factor he considered in reinstating Stapleton was the fact that Gallagher had become solely the manager of the Canmore Safeway store, meaning she would have little if any inter- action with Stapleton going forward it was unlikely more problems would stem from Stapleton's comments to her. But he gave the employer the right to re- quire Stapleton to submit to a routine exam- ination of her breath when she reported to work on each shift, either regularly or ran- domly, for 24 months. "Of course, (her) privacy rights are to be respected should the employer decide to examine her breath on her reporting for her shift," he said. He warned Stapleton was on thin ice with Safeway, and said being late for work 10 days in a three-week period was "simply not acceptable." For more information see: • Sobey's West Inc. and UFCW, Local 401 (Stapleton), Re, 2016 CarswellAlta 1417 (Alta. Arb.). The employee wasn't willing to accept an offer that she continue working as long as she sought treatment for her alcohol problem. Cases and Trends

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