Canadian Labour Reporter

Canmore store. Stapleton was at home, but wanted to talk to her about a co-worker whose parent had passed away. According to Gallagher, Staple- ton slurred her words and rambled a lot during the call, which lasted about five minutes. Gallagher told her she had to go, apparently giv- ing her a two-minute warning that the call would end. At that point, Stapleton said, "Everyone in Banff hates you and everyone in Can- more 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 work the follow- ing day, but when she returned to work she crafted an email to Safe- way's HR department complain- ing about Stapleton's behaviour. She outlined conversations she had with Stapleton about absen- teeism, 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 Stapleton "was clearly drunk, rambling and abusive." Gallagher said she wouldn't tol- erate any further communication from her "and I would like to see something done about this, as I am no less privy to protection against harassment 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 Al- brecht, the union representative for the store, to inform her she was there to meet with Stapleton about the phone call to Gallagher. Al- brecht phoned in to the meeting. Before the meeting, Bain and the assistant 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 alco- hol. She asked Stapleton if she had been drinking, to which she said, "No, I don't drink." Stapleton's version of the se- quence 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 alcohol 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 manager 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 of- fered 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 Sta- pleton had an alcohol addiction. A written warning from Febru- ary 2014 indicated Stapleton had been late on 10 times over three weeks. On one occasion, Gallagher smelled alcohol on her breath while discussing the tardiness with her. Ahrens told the union Safe- way was willing to put her on a last-chance agreement under the condition she seek treatment for her alcohol problem. The union replied that Stapleton was not will- ing to accept that offer, and Ahrens recommended termination. Stapleton was fired on June 23, 2015. The arbitrator took an in-depth look at numerous issues in the case. He decided the employer had just cause to discipline her for the inappropriate comment, call- ing it "rude, disrespectful, insult- ing 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 admit- ted she made the rude comment, expressed regret and offered to apologize. She had a lengthy ser- vice record with only a written warning for tardiness. Therefore, only a one-day suspension was justified for the comments. The arbitrator then looked at the June 1 meeting where she reeked of alcohol — ruling that Stapleton did indeed have the smell of alcohol on her and on her breath, in violation of the com- pany's drug and alcohol policy. But he stopped short of finding she was drunk. For breaching the policy, he de- cided a one-week suspension — on top of the day for the comment — without pay was warranted. He ordered her back to work with compensation and no loss of sen- iority. But he gave the employer the right to require Stapleton to sub- mit to a routine examination of her breath when she reported to work on each shift, either regular- ly or randomly, 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 she was on thin ice with Safeway, and said being late for work 10 days in a three-week period was "simply not accept- able." Gallagher became manager solely of the Canmore store, so the arbitrator took into consideration the fact they wouldn't be working at the same store anymore. Otherwise, the comments might have been more of a con- sideration in whether Stapleton would be able to return to the workplace. For more information see: • Sobey's West Inc. and UFCW, Local 401 (Stapleton), Re, 2016 CarswellAlta 1417 (Alta. Arb.). 7 Canadian HR Reporter, a Thomson Reuters business 2016 CANADIAN LABOUR REPORTER NEWS < Rudeness pg. 1 Grocery cashier late 10 times in 3-week period Photo: 29september (Shutterstock)

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