IN THE MATTER OF A FORMAL ARBITRATION BETWEEN: CANADA POST CORPORATION AND: CANADIAN UNION OF POSTAL WORKERS AND IN THE MATTER OF A FORMAL ARBITRATION GRIEVANCE NO s. 626-07-2-094-98-S SOLE ARBITRATOR O.B. SHIME, Q.C. APPEARANCES: RHONDA SHIRREFF Counsel and others for the Corporation ADRIENNE TELFORD Counsel and others for the Union Hearings in this matter were held at Toronto, Ontario, on October 19, October 20, November 24, November 26, 2010; June 16, June 21, July 12, and July 15, 2011. DATED at Toronto, this 2 nd day of January, 2013.
- 2 - AWARD On November 18, 2009, the grievor, a mobile letter courier, with approximately ten years of service with the Corporation, was convicted of one count of making available child pornography and a second count of possession of child pornography, contrary to the Criminal Code. He was sentenced to prison for one year on the first count and two to six months on the second count to be served consecutively. Prior to being sentenced, the grievor had asked his superintendent Thomas Keane for a one year leave without pay for personal reasons commencing on November 23, 2009. Mr. Keane became aware from other sources that the grievor was going to jail for child pornography offences, but, nonetheless, on November 19, 2009, he granted the grievor a three month personal leave until February 21, 2010, pursuant to Article 27.09 of the collective agreement. Mr. Keane also informed the grievor that he was expected to return to work Monday, February 22, 2010. On February 8, 2010 the grievor, by letter, requested an extension of his leave without pay until November 23, 2010. On February 10, 2010, Mr. Keane replied, denying the grievor s request. Mr. Keane s letter stated, in part, as follows: This letter is in response to your letter addressed to me dated February 8, 2010. In your letter you are requesting consideration to extend your current leave of absence until approximately 2010/11/23.
- 3 - As per the letter mailed to you dated November 19, 2009, I granted you 3 months leave without pay effective November 23, 2009 through February 21, 2010, in accordance with article 27.09 of your collective agreement. We are unable to grant your request at this time for Leave Without Pay until the date you have requested of November 23, 2010. If there are any other types of leave that you would like us to consider please do not hesitate to contact this office and provide any substantiating documentation that may be necessary to validate your request for leave under the collective agreement. In the interim, you are expected to return to work February 22, 2010 as scheduled. If you fail to return to work, your absence will be considered as AWOL (absent without leave) and may be subject to disciplinary action up to and including discharge from the Canada Post Corporation. A copy of this letter will be placed on your personal file. The caution expressed in the February 10, 2010 letter that if the grievor failed to return on February 22, 2010 he would be considered AWOL and subject to disciplinary action up to and including discharge was not contained in Mr. Keane s letter of November 19, 2009 granting the initial three month leave. On February 16, 2010, the grievor again wrote to Mr. Keane and advised that he had been convicted of a criminal offence and would be in jail until November 18, 2010, and asked that his request for leave until November 23, 2010 be reconsidered. On February 19, 2010, Mr. Keane replied that the Corporation would not extend his current leave and expected the grievor to return to work on February 22, 2010. His letter also stated the following:
- 4 - You have been granted a maximum leave without pay of three months. You may wish to resign and/or retire from Canada Post Corporation. Please respond via a signed letter how you wish to proceed. On February 26, 2010 Mr. Keane wrote to the grievor as follows: Please be advised that our record shows that you have been absent from the workplace since November 23, 2009 through February 21, 2010 on granted leave without pay. You were scheduled to return to work February 22, 2010 and did not report. Further to my letter dated February 10, 2010 addressed to you I wrote that we were not able to extend your request for an extension to your request leave via a letter you sent to me dated February 8, 2010. You are required to report to your regular shift on Monday, March 1, 2010. I may be contacted at (416) 694-5511 between the hours of 07:00 and 15:00. Should you fail to comply with the above, namely report to work on Monday, March 1, 2010 your absence will be considered as unauthorized, which will result in disciplinary action up to including discharge from Canada Post Corporation. A copy of this letter will be placed on your personal file. Similar letters were sent to the grievor on March 1, 2010, and on March 3, 2010. The letter of March 1, 2010, required the grievor to report for his next regular shift on March 3, 2010, while the letter of March 3, 2010, required him to report to work for his next regular shift on March 5, 2010. Both letters advised the grievor that if he failed to report his absence would be considered as unauthorized and he would be discharged.
- 5 - On March 5, 2010, a grievance was filed on behalf of the grievor which claimed that management was in violation of the collective agreement when it disciplined the grievor in a disciplinary interview report dated February 10, 19, 26 and March 1, 2010 which was placed on his personal file. The grievance asked that discipline be removed from the grievor s file and that the grievor be granted leave. On March 17, 2010, Kathleen Gallagher, Zone 4 Manager, wrote the following letter to the grievor: The Corporation s records show that you have been absent from the workplace since November 23, 2009. You requested and were granted three (3) months of Leave Without Pay as allowed through the CUPW collective agreement up until February 22, 2010. We have considered your application for extended leave from February 22, 2010 through yourself and your union representative. We have also considered your request for sick leave because of the reasons that you stated in your previous letters to us and requests through your union representative. There is no provision in the collective agreement that anticipates circumstances such as the ones you have described, and as such, your request for leave is therefore denied. Therefore, this letter will service to advise you that you are hereby discharged from employment, effective upon receipt of this letter. The reason for this discharge is as reflected above, specifically your continuing inability to report to work as required. You are directed to return any corporate equipment, property or keys in your possession. Any monies owing will be forwarded to you. A copy of this letter will be place on your personal file. On March 22, 2010, a second grievance was filed on behalf of the grievor claiming that he was unjustly discharged by K. Gallagher.
- 6 - Mr. Thomas Keane testified that on October 9, 2009, he became the superintendent of stations J and H where the grievor was employed as a mobile letter courier on Route 50. Previously, he had been a superintendent at another location for four years. The grievor asked Mr. Keane for a year s leave and appeared reluctant to disclose the reasons. Mr. Keane, respecting his privacy, did not require him to state the reasons for the leave. Accordingly, the grievor did not disclose the reasons for the requested leave. Mr. Keane informed the grievor that he would consider one year and may have told the grievor he would check the collective agreement. Mr. Keane, on the grievor s behalf, typed the letter dated November 12, 2009, requesting leave for one year and left it at the grievor s workplace to be signed. He responded to the grievor s request on November 19, 2009, and granted the grievor a three-month leave, pursuant to Article 27.09 of the collective agreement. Mr. Keane stated that while Article 27.09 permits a three-month leave, depending on the circumstances, extensions may be granted and he together with the zone manager may grant more than three months. Since Mr. Keane was new to the station when he received the request, he spoke to two supervisors about the grievor and they informed him the greivor was going to jail for possession and distribution of pornography. That conversation was between November 12, 2009, when he received the leave request and November 19, 2009 when he granted the grievor the three-month leave. Mr. Keane testified he was shocked by the information and claimed it is not what I deal with every day.
- 7 - Mr. Keane discussed the situation with Giles Parent, Director of Collections and Delivery, prior to November 19, 2009, and informed him the leave request was to serve jail time. Mr. Parent told Mr. Keane to grant a three-month leave which he did. Mr. Keane did not hear from either the grievor or the Union until the grievor s letter of February 8, 2010, requesting an extension; he was aware the grievor was in jail and unable to return to work. On February 22, 2010, Mr. Keane received a second extension request in which the grievor stated he was in jail. Mr. Keane consulted with a Labour Relations Officer, who vetted his response denying the extension, and granted the grievor the option of resigning or retiring. On February 26, 2010, the grievor s status with the Corporation was, temporarily struck of strength (TSOS) and he was considered absent without leave (AWOL) as of February 22, 2010. The grievor was sent three additional AWOL letters, referred to above, in accordance with the Corporation s practice. Mr. Keane confirmed that the Corporation grants leave for longer than three months and up to five years for circumstances such as maternity leave, but there is no provision for incarceration. Mr. Keane, after consulting with Labour Relations, wrote the discharge letter on behalf of Kathleen Gallagher, who was on vacation. Mr. Keane stated that he did not sign the letter granting the grievor the initial three-month leave, nor did the grievor submit a standard leave form. When cross-examined, Mr. Keane testified that the grievor s route included deliveries to individuals, businesses, community centers and schools. Mr. Keane
- 8 - familiarized himself with the grievor s route after he made the decision to deny the grievor full leave although he indicated otherwise when re-examined. He also investigated other routes that the grievor might be called upon to make overtime deliveries. There were no public complaints concerning the grievor nor was Mr. Keane aware of any incidents in the workplace involving the grievor. Although the grievor did not submit a formal leave form or disclose the reasons for requesting leave, Mr. Keane was satisfied with the grievor s initial request. He admitted that he offered the grievor an opportunity to request additional leave after three months and that one year would be considered. Mr. Keane confirmed that there are relief letter couriers assigned to stations who, if they had a vehicle operating permit, could have covered the grievor s route. Also, the grievor s route was not special and the learning curve to become familiar with it was not great. The Corporation found someone to cover the route for three months and also found someone to cover the route after the grievor was discharged. The grievor s absence in the first three months was not of excessive concern and the grievor s discharge did not have a significant impact on the Corporation s operations. When Mr. Keane discussed the leave with supervisors Judy Spencer and Jack Vitto between November 12 and November 19, 2009, he was told it was possible to cover route 50. Mr. Keane was also told the grievor was going to jail and the nature of the charges. He acknowledged the last grievor heard from him is that a one year leave would not be a problem and he also admitted that on November 12, 2009, he thought a one year leave would be fine. He was told by supervisor Judy Spencer that she did not
- 9 - see any reason not to grant the grievor leave to serve jail time. Mr. Keane was unaware that when the grievor was charged in 2007, he had strict bail conditions. However, Mr. Parent was aware of the charges but told him to grant the grievor three months leave without pay. He provided a copy of the letter granting leave to Mr. Parent and also had the letter vetted by labour relations prior to being delivered to the grievor. Mr. Keane was disappointed that Mr. Parent had not previously shared the information with him. He stated that child pornography is a serious offence which has a significant social stigma attached to it and which also elicits strong reactions. It elicited a strong emotional reaction from him and caused him to remove his childrens pictures from his office. When he made the decision to grant the initial leave, Mr. Keane did not review the grievor s attendance record nor did he assess the grievor s route. He has had two or three employees request a one year s leave of absence, but none for jail time and was not aware whether the Corporation had granted leave for jail time to others. He acknowledged that Article 27.09 allows more than three months leave. He was not aware whether the grievor could meet the security clearance allowing him to return to work on February 22, 2010, but stated it would be difficult for the Corporation to have the grievor work in uniform and in the community given the nature of his offence. Mr. Keane expected the grievor to return on February 22, 2010. Mr. Keane knew the nature of the grievor s offences and stated the grievor had good and sufficient cause for leave when he granted the grievor three months leave under Article 27.09. Mr. Keane again acknowledged that he had a discretion to grant
- 10 - the grievor more than three months and the Corporation has granted employees up to one year. He granted the three month leave because it was supported by the collective agreement and confirmed there was no reason for not granting him a one-year leave, but claimed there was nothing in the collective agreement supporting the granting of leave to an employee to serve jail time. When Mr. Keane wrote to the grievor indicating he would be AWOL, he did not copy the Union until he sent the letter of February 26, 2010. When he wrote to the grievor granting a three month leave, Mr. Keane felt comfortable relying on the nature of the offence in making [his] decision, but was not comfortable in relying on the nature of the offence in [his] letter writing. Notwithstanding that the various AWOL letters required the grievor to report to work under threat of discipline, Mr. Keane objected to his being on route 50. He was unaware of any corporate policy preventing a person with a criminal record from being employed by the Corporation, but felt the grievor could not continue working at the facility he supervised, although he might be able to work at a facility that did not have a local community center, public school, library or places that children might frequent. Mr. Keane acknowledged that none of the Corporation s letters referred to the nature of the grievor s offence. He did not respond to letters from the grievor s brother as there was no authorization that the brother could act on the grievor s behalf, nor did he contact the grievor or his brother to see if the brother had proper authorization.
- 11 - Mr. Keane admitted that the grievor was discharged for his continuing inability to report for work, although if the grievor had reported Mr. Keane possibly would have denied him employment. There was no mention of the grievor s incarceration or the nature of the offence as a reason for termination and the criminal offences were for off duty conduct. Mr. Keane felt the grievor was a risk to him because he was unable to display pictures of his children in his office and it was known that he lived in the immediate community and his home address was known to the employees. When he drafted the termination letter he did not consider other options such as a suspension without pay. Mr. Keane did not ask if others had similar experiences, nor did he consult with others to see if there were similar cases; he simply followed the AWOL process. Gayle Grey, a postal inspector in the investigations and security group who is involved in criminal matters and police investigations, became aware that the grievor was charged with child pornography offences in 2007. She reviewed the grievor s bail conditions which prohibited the grievor from being within 100 metres of a public school playground, recreational centres, public swimming pool or any other place where children under the age of eighteen could be found and also prohibited him from knowingly being in the presence of anyone under eighteen except in the present of his surety or an adult designated by his surety. Ms. Grey was concerned about these conditions since the grievor, as a letter carrier, could conceivably be in breach of those conditions while delivering mail. Ms. Grey was also concerned that there were children under eighteen, who worked for the Corporation in different capacities, who might come in contact with the grievor. Also, the grievor was prohibited from accessing the internet
- 12 - and Ms. Grey was concerned that there was internet access available in the postal stations where there was not a great deal of supervision. Ms. Grey contacted Peter Adler, a manager at labour relations, both about her concerns and also to see if the grievor could be accommodated. In September 2007, she was told the grievor was struck off strength. However, in preparation for this arbitration in 2011, she found that the grievor had been permitted to return to work as a clerk and as a letter carrier until he went to jail. She also found out that the grievor s bail conditions had been amended to permit him to return to work. When cross- examined, Ms. Grey stated that she understood that management was aware of the nature of the grievor s offences and bail restrictions and that the grievor had voluntarily provided the documents. In re-examination, Ms. Grey stated that she was not specifically aware of employees or contractors under the age of sixteen working for the Corporation. C.W., the grievor s brother, testified that he was told by the grievor that Mr Keane had granted him leave both to his and the grievor s relief since the grievor would have a job when he got out of jail. C.W. received a message on his answering machine from Mr. Keane on November 18, 2009, after the sentencing hearing advising that the grievor would only be granted three months leave according to the guide book. C.W. contacted Mr. Keane who refused to talk to him even though he was the grievor s brother, but told him to expect a letter the next day. C.W. received the letter on November 19 or 20 and contacted Judy Spencer, the grievor s supervisor, to ask if there was anything he could do and was told not to worry since the three months leave might
- 13 - only be a penalty and might have to be extended every three months. Ms. Spencer was aware that some people received a year off and even longer and indicated her disappointment because the grievor was a good employee and she had recommended he keep his job. C.W. prepared the letter dated February 8, 2010, requesting an extension of the leave until February 23, 2010, and delivered it to Judy Spencer who said she would talk to Mr. Keane. She also informed C.W. that she hoped the grievor would get the full year off. C.W. then wrote another letter on behalf of the grievor on February 16, 2010, advising the grievor was in jail and requesting Mr. Keane reconsider the request for leave without pay until February 23, 2010. Mr. Keane replied that the Corporation was unable to grant the grievor a further extension and suggested the grievor might wish to resign or retire. At that point, C.W., who visited the grievor, was told by him to contact the Union and file a grievance. C.W. again wrote Mr. Keane on March 1, 2010, stating that no reasons had been given for reversing your decision to allow [the grievor] the leave of absence without pay until November 23. C.W. stated that Canada Post had allowed employees to take leave longer than three months up to or longer than one year s time. originally grant it. [The grievor s] request was not particularly unusual and you did C.W. also stated the grievor was incarcerated and receiving treatment and could be given a medical leave. Mr. Keane responded by letters on February 26, 2010 and March 1, 2010 stating that the Corporation was not able to extend the grievor s leave and requiring him to report to work, failing which his absence would be considered as unauthorized resulting
- 14 - in disciplinary action up to and including discharge. On March 1, 2010, C.W. contacted Judy Spencer and Mr. Keane answered the phone and informed C.W. he was in charge and demanded C.W. stop speaking to Judy Spencer. At that point, C.W. got in touch with the Union. When cross-examined, C.W. stated that he spoke to Judy Spencer on three or four occasions and while he could not recall the conversations in detail just the basics, he believes she recommended that the grievor get one year off. C.W. understood that Mr. Keane was Ms. Spencer s boss, but had asked her for her advice. C.W. initially understood that Mr. Keane had given his brother one year off. When C.W. wrote that the reason for his brother s incarceration was neither theft nor violence, he was trying to assure the Corporation that there was nothing that the grievor had done that affected his job since he understood the Corporation was specifically concerned about theft and violence. C.W. did not hear the judge at the sentencing characterize the grievor s conduct as violence or theft. When he wrote to Mr. Keane on his brother s behalf on February 16, 2010, he referred to his brother being convicted of a criminal offence and did not refer to the exact offence because he was under the impression that Mr. Keane was aware of the offence for which his brother was convicted. C.W. admitted that he did not indicate he was authorized to act on behalf of his brother, nor was he of the opinion that the grievor had advised the Corporation that he was authorized to act on his behalf. He understood that his brother would receive treatment in jail and for that reason referred to a medical leave in his letter. C.W. also
- 15 - contracted the Union and at his brother s request asked the Union to file a grievance. He was told that the Union would not file a grievance until March 2010. The grievor testified that he is forty-four years old and lives with his brother in the family home. He was unable to continue with a five year relationship that he had because of his bail restrictions. He had commenced employment with the Corporation in November 2000, and began working full-time as a motorized letter carrier (MSC) in 2004. During that time he maintained good relationships with his colleagues and supervisors. The grievor was charged with possession of child pornography and making it available on June 4, 2007. Those offences took place in his home. On June 6 or June 7, 2009, he spoke to Judy Spencer, his supervisor, and told her that he had job restrictions. He then spoke to Peter Adler, the superintendent at the time, and gave him a copy of his bail restrictions which prohibited the grievor from being within 100 metres of a school, which affected his route. Peter Adler informed the grievor he would attempt to get him alternate work, but since there was nothing immediately available the grievor took vacation time. He was returned to work as a night sorter at 50 Church Street in late September of 2007, and continued in that position for approximately nine months. The grievor received a bail variance and gave it to Giles Parent, the zone manager, and was returned to his old route as a letter carrier in May or June of 2008. The grievor maintained that everyone at work was aware of the nature of the charges against him. He also advised Judy Spencer, his supervisor, about the bail conditions. The grievor plead guilty in April 2009, and was sentenced on November 18, 2009. He initially
- 16 - approached Ms. Spencer for a one year leave of absence and she referred him to Mr. Keane, the superintendent. The grievor approached Mr. Keane in early November, one week prior to the letter of November 12, 2009, in which he requested a one year leave. According to the grievor, when he asked for one year Mr. Keane said it should not be a problem and asked the reasons. Mr. Keane then referred to various types of leave such as medical leave and informed the grievor that if he would rather not discuss the reasons he could say it was for personal reasons. The grievor testified that he was scared and nervous because of the impact of the offences on his life; he thought he would have to file the reasons for requesting a one year leave even though he was positive that everyone in the station knew about his situation. However he was relieved when Mr. Keane told him he did not have to give personal reasons. Mr. Keane told the grievor he would require the request in writing and offered to type it for him - which he did. The grievor had expected to give his reasons and would have told Mr. Keane the reasons if he had been asked. After Mr. Keane prepared the request, the grievor was given a copy to sign. The grievor last worked on November 17, 2009. He did not discuss the matter further with Mr. Keane and assumed everything was fine. The grievor was sentenced to eighteen months and probation for one year, but served twelve months. He was sent to the Ontario Correctional Institute at Brampton; it was part of his plea bargain that he would receive treatment. He spent the first month in the Don Jail and started treatment when he was transferred to Brampton.
- 17 - The grievor was surprised when he received Mr. Keane s letter granting him only three months leave. He testified that his brother spoke to Judy Spencer who said it was a mere formality, and the grievor would have his leave extended at the end of the three month period. Accordingly, he waited until two weeks prior to the end of the three month leave before requesting a further leave. Mr. Keane, in a letter dated February 10, 2010, denied the grievor s request for further leave and stated that the grievor was granted leave for three months until February 21, 2010, in accordance with Article 27.09 of the collective agreement and if the grievor did not return to work on February 22, 2010, as scheduled, he would be considered AWOL (absent without leave) and would be subject to discipline up to and including discharge. The grievor, in a letter dated February 16, 2010, requested Mr. Keane reconsider his request for leave until November 23, 2010. The letter was typed by his brother and the grievor did not sign it. The letter acknowledges that the grievor was convicted of a criminal offence, but it was neither theft nor violence related. The grievor claims he was not involved with the wording of the letter and would not have stated the offence for which he was convicted was not violent; he has learned, while in treatment, that he was contributing to a cycle of violence. The grievor s brother on March 1, 2010, wrote to Mr. Keane advising that the grievor was receiving treatment while incarcerated and suggested the grievor could be given a medical leave. The grievor testified his treatment consisted of text studies, group
- 18 - sessions with a psychologist, psychiatrist, or social worker, house meetings with others, counseling, activities with alcoholics anonymous or narcotics anonymous, and maintaining a journal about his feelings and emotions. He also learned about the cycle of abuse and different coping skills. When he was moved to Penetang, he was involved in a substance abuse program and took high school courses. Currently, the grievor is receiving social assistance, does not see friends who were co-workers, is depressed and unmotivated. He has found it impossible to find reasonable employment. Since completing his sentence, he has received treatment in building and maintaining healthy relationships and being open with his feelings and communicating. He entered the Manassa program designed for sex-offenders which consists of group therapy and which lasted for four months. The grievor also completed a sixteen week program for child pornography offenders at CAMH. He has also seen a psychologist for additional treatment, but only since June 29, 2012, which is after these proceedings commenced. The grievor testified that he feels horrible about what he has done and realizes that he has to make certain he does not repeat it. The treatment he received has helped him to understand the severity of what he has done. He is subject to a 10 year probation order that prevents him from attending public areas where there are persons under the age of sixteen years.
- 19 - When the grievor was cross-examined, he admitted he was at a higher risk for relapse than the general public. On his route, there is a day care centre and the grievor delivers to the mail room on the west side of the building, but claimed he does not deliver directly to the day care, which would not be in breach of his probation order. According to the terms of his probation, the grievor was requested to have an assessment to determine whether he could be diagnosed as a pedophile. He attended at CAMH for the test, but he felt it was invasive and since he was unsure how it would affect him legally he declined to have the test. The grievor would have preferred a noninvasive test by a psychologist or psychiatrist which did not involve being hooked up to a machine. He testified that CAMH had enough information to place him in treatment. When the grievor was incarcerated in Penetang, he received treatment for substance abuse but did not receive treatment for the sex offences. However, he wrote in a journal as part of his treatment which he claimed was for self-preservation. He also reflected on his circumstances to better understand himself. When he received the letter from Mr. Keane granting him a three month leave, he spoke to his brother who told him that Judy Spencer said the grievor could apply for an extension. He took the information provided by his brother at face value and made no attempt to contact Judy Spencer or Thomas Keane.
- 20 - Initially, the grievor s bail conditions prevented him from being within 100 metres of a public school, which prevented him from working as a mobile letter carrier. However, that condition was subsequently varied so as to provide him with an exemption for employment purposes and he was able to return to work. When he initially requested a leave from Mr. Keane he did not tell him he was going to jail. However, he told Judy Spencer he was going to jail. He spoke to his brother while incarcerated and requested a further extension of his leave on February 8, 2010, based on his brother s conversation with Judy Spencer. When the extension was rejected, the grievor contacted the Union, through his brother, to file a grievance. The grievor understood he would serve two-thirds of his sentence if his behavior was good. He has restrictions concerning devices to access the internet and further restrictions for 10 years concerning his access to public places where persons under the age of sixteen are present or can reasonably expect to be present, or access to a day care centre, school ground, playground or community centre. The grievor was also required to register as a sex offender for a period of twenty years. The grievor was exempted from certain of his probation conditions post incarceration for employment purposes, but not from the condition barring him from places where young people are in attendance.
- 21 - When re-examined, the grievor stated that he did not write in his journals at Penetang because there was no personal space and he feared that others who had access to his journals might discover the journals and assault him. His criminal record and parole restrictions have made it difficult for him to find employment. The first issue raised by the parties is whether the grievances are timely. The initial disciplinary grievance requested as one part of its remedy that the Corporation Grant this worker leave. Based on that partial remedial request, the Corporation argues that it is in effect the one year leave, that had been denied three and one half months earlier on November 19, 2009. The Corporation argues that the grievance was filed later than the twenty-fifth (25 th ) working day after the date on which the grievor became aware of the action or circumstances giving rise to the grievance, contrary to article 9.10 of the collective agreement. The Corporation also claims that since article 9.10 is a mandatory provision the twenty-five (25) day time limit may only be extended by mutual agreement pursuant to article 9.31, and the failure to file within the time limit renders the grievance time barred and also non-existent. Since the grievance was untimely and not extended by mutual agreement, to allow the grievance to proceed would negate the mandatory time limits.
- 22 - The Union submits that both grievances were filed within the 25 day time limit under article 9.10 and are timely. The Union claims that the Corporation had a discretion to extend the leave past the three month limit originally granted and it was only when the Corporation refused to grant an extension on February 10, 2010 that the clock started ticking. The Union further claims that the grievor could not have predicted his eventual termination when he received Mr. Keane s letter of November 19, 2009, because the sole reason for denying the leave was the three month limit in the collective agreement and there was no suggestion that the grievor s failure to return to work would lead to discipline or even termination. The grievor first became aware of the termination after he received Ms. Gallagher s letter of March 17, 2010, and filed a timely grievance several days later. The Union also relies on section 60(1.1) of the Canada Labour Code which grants an arbitrator power to extend the time limits. For the following reasons, I found the grievances to be timely. I turn first to the disciplinary grievance dated March 5, 2010, (March 9, 2010), which provides as follows: The C.U.P.W. grieves on behalf of V. Wiatrowski that management namely T. Keane is unjust and unfair and in violation of articles 10 and all related articles of the collective agreement when management disciplined this employee established in a disciplinary interview report dated February 10, 19, 26 and March 1, 2010 which was placed on the personal file. The remedy requested is as follows: Adhere to the collective agreement Full redress to include but not limited to that management remove the disciplinary report and matters related to this discipline from this workers personal file. Pay all monies and restore all rights lost, plus interest Grant this worker leave. It is apparent that the gravaman or the essence of the grievance is an attack on the disciplinary interview report dated February 10, 19, 26 and March 1, 2010, which
- 23 - appears to have been placed on the grievor s personal file. The request to grant the greivor leave is only one aspect of the remedy requested and on that basis alone cannot prohibit the grievance from proceeding because of both the wording of the grievance and also all of the factual elements leading up to the filing of the grievance, which I now turn to consider. Initially, and remembering that this grievance is an attack on the disciplinary interview report, when the Corporation granted the three-month leave on November 19, 2009, it made no mention of any consequences whatsoever to the grievor if he did not return. Indeed, as will be discussed later, the inference in the letter granting leave, in all the circumstances, suggest that the grievor could return to work at the end of three months or alternatively, that he might apply after three months to extend the leave. The first indication, that there might be penalty consequences to the grievor for not returning on time appears in the Corporation s letter of February 10, 2010. But even then no precise consequences are spelled out since the Corporation stated that the grievor may be subject to disciplinary action up to and including discharge for failing to return on time. However, the Corporation in its letter of February 19, 2010, did not hold to its position respecting discipline because it provided the grievor with an opportunity to resign and or retire. The Corporation s position, on that day, left the prospect of discipline in abeyance. On February 26, 2010, the Corporation by letter extended the grievor s leave to March 1, 2010, and repeated that failure to report will result in disciplinary action. I determine that the result of the Corporation extending the time to
- 24 - report, in effect, extended the leave time in the original leave grant of November 19, 2009, and as such it was a fresh step in the Corporation s leave granting process which waived any time limits which might have been inherent in the original grant. In short, by extending the time to report, the Corporation also extended the time for the Union to file a grievance requesting an extension of the original leave. Similar letters to the February 26, 2010, letter were sent to the grievor on March 1, 2010, and March 3, 2010, extending the reporting time to March 3, 2010, and March 5, 2010 respectively. The Corporation s leave granting process was a continuing one and by tacking on additional time to report to the original grant of leave the Corporation, in my view, also extended the grievor s right to file a grievance requesting additional leave. But the grievance claims that the Corporation was unjust and unfair when it disciplined the grievor in a disciplinary interview dated from February 10, 2010 and thereafter. The grievor was not aware of any disciplinary consequences until the letter of February 10, 2010. The original letter granting leave made no mention of discipline, so how was the grievor to know that he might be disciplined? Based on all the circumstances, the grievor believed he might receive an extension of the leave and there was no reason whatsoever for him to file a grievance complaining about discipline until he became aware that the Corporation might invoke some form of discipline. The Corporation s first indication of any discipline occurred on February 10, 2010 and it was only at this time that the grievor first became aware of any disciplinary consequences.
- 25 - Accordingly, the disciplinary grievance is timely. The partial remedial request cannot obviate what is in essence a timely grievance claiming improper discipline. As to the discharge grievance, it is patently in time. The grievor was discharged on March 17, 2010, and the grievance claiming unjust discharge is dated March 22, 2010, and is well within the time limits specified in the collective agreement. Also, that grievance permits or allows an examination at arbitration of all the circumstances leading up to the discharge. Alternatively, I determine that Section 60(1.1) of the Canada Labour Code is applicable to this collective agreement. That section provides as follows: Power to extend time The arbitrator or arbitration board may extend the time for taking any step in the grievance process or arbitration procedure set out in a collective agreement, even after the expiration of the time, if the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the other party would not be unduly prejudiced by the extension. A similar section under the Ontario Labour Relations Act has recently been reviewed by the Ontario Court of Appeal in Greater Essex County District School Board v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 552, (2012) 11 OR (3d) 1, which determined that the Ontario Labour Relations Board (OLRB) decision to assume jurisdiction over an untimely referral to arbitration was unreasonable. In that case, Article 17.3 of the grievance procedure provided that a grievance not covered through the referring article in accordance with the time limits specified or mutually
- 26 - agreed to was deemed to have been settled satisfactorily by the parties. On the basis of that provision, the Court of Appeal found the grievance procedure was mandatory and there was no live grievance at the time of the referral to arbitration, with the result that the arbitrator could not extend the time limits. The Court stated that the parties could have demonstrated a different intent if they had included language such as the following: may refer a grievance, including a grievance already adjudicated, settled, deemed to be settled or abandoned That language suggests that for there to be an extinguished grievance prohibiting an arbitrator to extend the time, conversely, there must be specific like language to that effect in the collective agreement. There is no such language as the Court described in this collective agreement. The failure to include a provision in the current collective agreement, such as the Court suggests, to nullify the grievance, in my view, distinguishes this case from the Greater Essex County case. The language in this case merely prevents the grievor from presenting the grievance and does not extinguish the grievance.. All mandatory provisions are not the same and they are subject to interpretation on their own terms. I note that in a predecessor collective agreement referred to by Arbitrator Swan that a prior Article 9.15, at the second level in which grievances were not presented within the time limits were deemed to have been withdrawn. Re: Canada Post and CUPW (C. Farquarson) (1991), 23 C.L.A.S. 250. The parties were
- 27 - therefore aware of such extinguishing language and accordingly, their failure to introduce such language in the current collective agreement suggests that there was no intent to extinguish a grievance which was not presented on time. They merely intended to prohibit the grievance from proceeding. I therefore conclude, if one assumes that the time limits apply, that the grievance in this case was not extinguished. While the clauses in issue in this matter may be considered mandatory for certain purposes they do not extinguish the grievances so as to prevent or prohibit an arbitrator from extending the time limits under the Code. The grievor is simply prevented from presenting the grievance. Accordingly, the provisions of the Canada Labour Code may be applied to the situation at hand. In the result, I determine there are reasonable grounds to extend the time limits and the Corporation is not prejudiced by doing so. The grievor, at the time the one year leave was denied, was incarcerated and not in the work place where he might have had ready access to union representation. Further, as a result of his conversation with Mr. Keane, the grievor was under the impression he might receive a one year leave and since the granting of the three month leave failed to disclose any consequences, when coupled with assurances that he received, through his brother, from Judy Spencer who was a supervisor and a member of the management team whose statements constitute admissions against interest by the Corporation, he had no reason to rush to file a grievance.
- 28 - Also, the Union initially was not informed of the situation. Article 10.01(a) requires an employee to receive written notice showing the grounds of any discipline or discharge which might be imposed and no such notice was contained when the three month leave was granted, which again, suggests that any action by the Corporation to deal with the grievor s incarceration through discipline or discharge did not crystallize until the grievor became aware of the consequences of the leave expiring and/or received notice of any impending discipline or discharge which was not until February 10, 2010, which is required when the Corporation disciplines or terminates an employee. The grievor had a right to Union representation both at any interview of a disciplinary nature pursuant to Article 10.04 and also in the event of termination pursuant to Article 10.08. When the initial grant of leave for three months was granted, in the absence of any disciplinary or termination notice or consequences, the grievor had no reason to suspect, in view of all the circumstances, that he required Union representation. He was therefore prejudiced by not receiving notice of any intended conduct by the Corporation. There is no prejudice to the Corporation that it has advanced in argument and in all the circumstances of this case, leave is granted to extend the time limits for the filing of the grievances under the Canada Labour Code which is incorporated into the collective agreement pursuant to Article 9.99. As to the merits, the Corporation submits that the real issue in this matter is whether it was required to grant the grievor a one year leave of absence while he was incarcerated for the child pornography offences. The parties are agreed that if the
- 29 - grievances are allowed, that I remain seized to deal with remedy The Corporation argues that while it could have exercised its management s rights discretion to grant the grievor a one year leave to serve his jail sentence, there was no provision in the collective agreement entitling an employee to a leave of absence to serve jail time. The grievor was granted a three month leave pursuant to Article 27.09, which provides for a three month leave for good and sufficient cause. The Corporation submits jail leave requests are unusual and granting a one year leave would have a negative impact on the Corporation s operations. The Corporation also claimed the nature of the offences were relevant to the grievor s job, the workplace and the Corporation s public reputation and image and the grievor s arrest and conviction detrimentally affected his status within the community and the workplace. The Corporation further maintained that the terms of the probation order which contained a 10 year restriction concerning the grievor s presence at or near public locations frequented by persons under the age of sixteen had a negative impact on his ability to perform the work of a letter carrier. Further, the sentencing judge ordered the grievor to be placed on the sex offender s registry for 20 years and to be assessed in order to determine whether he was a pedophile. In addition, the Corporation claims the grievor was not a credible witness. And finally, the Corporation claims that the grievor s discharge was pursuant to the normal absent without leave (AWOL) process. The Union frames the issues differently. The Union claims that the discharge of the grievor was unjust and that the Corporation should have extended the grievor s personal leave to permit him to complete his prison sentence. The Union argues that the Corporation s conduct was arbitrary, discriminatory and unreasonable. The Union submits the Corporation did not rely in writing on the nature of the grievor s
- 30 - offence as a ground for its actions and the grievor was entitled to fair notice of the grounds for his discipline or discharge. The Union further claims the offence which took place in the grievor s home had an insufficient nexus with his employment to justify denying the full leave and severing the employment relationship. The Union maintains the grievor was forthright about the nature of his offence and the Corporation never specified the grounds for objecting to the grievor s continued employment as it was required to do pursuant to Article 10.01 of the collective agreement, which requires that disciplinary measures including discharge shall not be imposed on any employee without just, reasonable and sufficient cause and without his or her receiving written notice showing the grounds on which a disciplinary measure is imposed. The burden of proof in these cases rests with the Corporation, which is confined to the grounds maintained in the notice. The Union submits that other employees had been granted leave to serve jail time and that the Corporation, through Mr. Keane, failed to consider those situations and that Mr. Keane s decision making was unreasonable. The Union claims the grievor was a forthright and credible witness and granting him a one year leave would not significantly impact the Corporation s operations. And finally, the Union argues that the grievor s employment interests outweighed the Corporation s concerns.
- 31 - In reply, the Corporation reviewed the testimony and maintained the grievor was not a credible witness and the refusal to grant an extended leave included the reasons for the leave, the length of the leave, the impact on operations, the nature of the criminal offences and their relevance to the grievor s employment. The Corporation asserted that the grievor s continued absence after the three month leave had been granted constituted just cause to terminate the grievor s employment and the Corporation had complied with the normal AWOL process. The Corporation also argued that the grievor s criminal record, coupled with the terms of the prohibition order, are relevant to the grievor s job as a Canada Post letter carrier and render his employment with Canada Post an unacceptable risk. As a preliminary matter, after duly considering the evidence and the submissions, I determine contrary to the Corporation s submissions that the grievor acknowledged that he had been charged with pornography offences to various members of management within the Corporation. The grievor testified that both Mr. Parent, the manager and also his supervisors were aware of the nature of the offences which Mr. Keane confirmed. Ms. Grey, in the Investigations group was also aware and testified she spoke to Peter Adler in labour relations about the situation. While Mr. Keane was not initially aware, he admitted he was informed of the nature of the grievor s offences by Ms. Spencer, Mr. Vitto and Mr. Parent prior to granting the grievor the three month leave. The grievor was entitled to and could properly assume that Mr. Keane, who had become the superintendent at the time he requested leave, was also aware. There was certainly broad corporate knowledge and the grievor was not remiss in assuming that Mr. Keane also was aware of his circumstances.