Co-worker thought meat cutter smelled of alcohol
This instalment of You Make the Call takes a look at a case where a worker was sent home after the employer thought it smelled alcohol on him. Mr. Palmateer was a bone cutter with Midtown Meats Ltd. in Ontario.
On Oct. 5, 2005, he was sent home for smelling like alcohol. Palmateer filed a grievance arguing there wasn’t sufficient basis to send him home without pay.
The production team manager had received a report from another employee that morning that Palmateer had shown up smelling of alcohol. The manager met with Palmateer and a union steward and both said they could smell alcohol. The manager said she could not determine whether Palmateer was able to safely perform his job duties, which involved using sharp knives on a production line. He was sent home for the balance of his shift.
There was no evidence, or even suggestion, that Palmateer was actually impaired. He exhibited no signs of being drunk, outside of smelling like alcohol. There was nothing in his work so far that morning to suggest he was having any difficulty. In fact, the production line was running faster than normal and he had been on the job for two hours without any problem.
Palmateer said he had about four cans of beer after his shift the previous day and went to bed at 9:30 p.m. He got up at his usual time of about 5:15 a.m., washed his face, brushed his teeth, used mouthwash and deodorant and used some aftershave that had a fairly strong scent.
The work environment was such that it was cold (about four to five degrees Celsius), there were fans above the work area and, due to the nature of the work, there were often unpleasant smells.
You make the call
Was Midtown Meats justified in sending Palmateer home?
OR
Did it have insufficient evidence to rely on in making that decision?
If you said the employer did not have sufficient cause to send Palmateer home, you’re correct. The Ontario Arbitration Board said the conditions on the assembly line involved several odours as well as fans, which it would make it difficult for someone to positively distinguish the smell of alcohol on Palmateer.
The arbitrator also said it was noteworthy that Palmateer was able to perform his duties without difficulty. At the hearing, the union steward — who had agreed that he could also smell alcohol on Palmateer — admitted that it could have been him who smelled of alcohol.
“I had beer the night before, until 11:30 p.m,” the union steward said. “I said (that it was him) to protect myself.”
The production team manager said the company had a policy that if an employee smelled of alcohol while at work, he would be sent home. But that policy had not been communicated to employees.
The production team manager based her decision to send Palmateer home on the brief interview in her office, because she “could not determine whether he was fit to go to the production line.”
“This conclusion was reached on the basis of a hearsay report which, in the circumstances of the workplace, simply could not be relied on, and of a brief meeting in the office where a smell of alcohol was detected which may, indeed, have been attributable to the presence of the (union steward) rather than that of (Palmateer),” the arbitrator said.
“There was no attempt to enquire of the original ‘informant’ as to her observations or to seek verification from anyone else, and no consideration appears to have been given either to (Palmateer’s) own account, which I accept, of his previous evening and of his personal hygiene, including the use of aftershave, or to the quality of his work, performed at a faster-than-usual pace over a period of two hours.”
The arbitrator awarded Palmateer the wages he lost for that day.
For more information see:
• Midtown Meats Ltd. v. U.F.C.W., Local 175, 2005 CarswellOnt 8771, 145 L.A.C. (4th) 344 (Ont. Arb. Bd.)
On Oct. 5, 2005, he was sent home for smelling like alcohol. Palmateer filed a grievance arguing there wasn’t sufficient basis to send him home without pay.
The production team manager had received a report from another employee that morning that Palmateer had shown up smelling of alcohol. The manager met with Palmateer and a union steward and both said they could smell alcohol. The manager said she could not determine whether Palmateer was able to safely perform his job duties, which involved using sharp knives on a production line. He was sent home for the balance of his shift.
There was no evidence, or even suggestion, that Palmateer was actually impaired. He exhibited no signs of being drunk, outside of smelling like alcohol. There was nothing in his work so far that morning to suggest he was having any difficulty. In fact, the production line was running faster than normal and he had been on the job for two hours without any problem.
Palmateer said he had about four cans of beer after his shift the previous day and went to bed at 9:30 p.m. He got up at his usual time of about 5:15 a.m., washed his face, brushed his teeth, used mouthwash and deodorant and used some aftershave that had a fairly strong scent.
The work environment was such that it was cold (about four to five degrees Celsius), there were fans above the work area and, due to the nature of the work, there were often unpleasant smells.
You make the call
Was Midtown Meats justified in sending Palmateer home?
OR
Did it have insufficient evidence to rely on in making that decision?
If you said the employer did not have sufficient cause to send Palmateer home, you’re correct. The Ontario Arbitration Board said the conditions on the assembly line involved several odours as well as fans, which it would make it difficult for someone to positively distinguish the smell of alcohol on Palmateer.
The arbitrator also said it was noteworthy that Palmateer was able to perform his duties without difficulty. At the hearing, the union steward — who had agreed that he could also smell alcohol on Palmateer — admitted that it could have been him who smelled of alcohol.
“I had beer the night before, until 11:30 p.m,” the union steward said. “I said (that it was him) to protect myself.”
The production team manager said the company had a policy that if an employee smelled of alcohol while at work, he would be sent home. But that policy had not been communicated to employees.
The production team manager based her decision to send Palmateer home on the brief interview in her office, because she “could not determine whether he was fit to go to the production line.”
“This conclusion was reached on the basis of a hearsay report which, in the circumstances of the workplace, simply could not be relied on, and of a brief meeting in the office where a smell of alcohol was detected which may, indeed, have been attributable to the presence of the (union steward) rather than that of (Palmateer),” the arbitrator said.
“There was no attempt to enquire of the original ‘informant’ as to her observations or to seek verification from anyone else, and no consideration appears to have been given either to (Palmateer’s) own account, which I accept, of his previous evening and of his personal hygiene, including the use of aftershave, or to the quality of his work, performed at a faster-than-usual pace over a period of two hours.”
The arbitrator awarded Palmateer the wages he lost for that day.
For more information see:
• Midtown Meats Ltd. v. U.F.C.W., Local 175, 2005 CarswellOnt 8771, 145 L.A.C. (4th) 344 (Ont. Arb. Bd.)
