IN AN ARBITRATION

BETWEEN :

THE CANADIAN ASSOCIATION OF COMMUNICATIONS

AND ALLIED WORKERS

The Union

-and-

TERRA NOVA TELTCOMMUNICATIONS INC .

The Company

Re: Discharge of W. for the reason that she was "not available

to attend and continue the job requirements".

Hearing : St. John’s,January 5 and January 20, 1984.

Before: Mr. Wayne Thistle , Chairman

Mr. Wayne Russell , Union Nominee

Dr. Fred Russell , Company Nominee

Appearances:

For the Union :

Mr. Frank O’Dea

For the Employer :

Mr. Eric Facey

Witnesses :

Called by the Company :

Mr. Clarence Snook, Manager of Employee Relations

Called by the Union :

Mrs. W., the grievor

At the hearing the parties agreed as follow :

1. The Board was properly constituted .

2. There were no preliminary objections going to juridiction to hear the grievance .

3. The grievance procedure had been properly followed or requirements had been waived .

4. The board would remain seized of the matter in the event the parties could not agree on the interpretation of this award or in the event there is a question of compensation arising from the award .

5. Witnesses would be permitted to remain throughout the hearing .

6. Time limits for the filling of the award were waived .

The following exhibits were taken into evidence :

Consent 1: Collective Agreement

Consent 2: Statement of Issue

Consent 3: Record of Conviction

Consent 4: Summary of Correspondence

Consent 5: Letter of 1982 08 02

Consent 6: Application for Leave of Absence Without pay dated 1982 08 20

Consent 7: Letter dated 1982 11 05

Consent 8: Letter dated October 25, 1982

Consent 9: Letter of recommendation from Winston Wellon

Consent 10: Letter of recommendation from Bonnie Pritchett

Consent 11: Letter of recommendation from J. F. Roberts

C.S.1: Company Policy on Leave of Absence Without Pay

C.S.2: Supervisors’ Personel Manual

Agreement section referred to at the hearing are as follows :

"Article 22 -Leave of Absence

22.4--An employee ,at the discretion of the company and in

accordance with company rules and regulations ,may be

granted up to three months’ leave of absence without pay

in any twelve (12) month period . The employee will apply

for such leave in writing . If such leave is granted ,he will be

required to report back for duty on or before the expiry date

of such approval . However ,in the event of sickness or other

bona fide reason ,additional or extended leave of absence in

accordance with Company’s rules and regulations may be

granted ,but in each case the employee shall obtain approval in

writing prior to the expiry date of the authorized leave."

SUBMISSIONS

In its opening statement the Company indicated that it had acted properly in the termination of the grievor . Because of her own activities she was unable to perform her duties . She made a request for a leave of absence but it was denied . The Company had a discretionary right whether or not to grant leave . There is no condition in the Collective

Agreement which requires leave to be granted under the circumstances in which the grievor found herself . The position the grievor occupied was one that ,if left unfilled ,would lead to a disruption in the Company’s operation .

The Company witness was Mr. Clarence Snook, Manager of Employee Relations . He stated that he had received a written request from the grievor for leave of absence without pay . After studying the Company Policy on leaves of absence and consulting other Company officials he responded orally through Supervisor . The company position given to her at that time was that she could be considerer for leave for court trial but the company would not and could not grant her leave for a jail term . The grievor in the letter of 1982 08 02 had requested information from Mr. Snook concerning the company policy with respect to how long a leave of absence could be approved and the amount of notice required .

Mr. Snook referred to article 22.4 of the colletive agreement refering to the fact that leaves of absence could be granted at the discretion of the company and in accordance with rules and regulations .The periods of such leave were also stipulated . The company policy on leave of absence without pay is stated in the supervisor’s personnel manual . Section 8/1 deals with general purpose leave as it applies to other union representatives . One of the categories in this leave deals with Urgent Private Affairs .

Mr. Snook referred to the various pieces of correspondence dealing with the grievor’s requests for leave . Her initial letter was dated August 2, 1982 . She was given an oral response on August 10, 1982 and on August 18, 1982 she filed an application for leave of absence without pay on the prescribed form . At that time she requested leave from September 6, 1982 through December 6, 1982, aperiod of three months . The reason given was "Possibility of Sentencing Due to Present Legal Charges". Mr. Wellon, the Manager ,did not recommend the request be granted and Mr. R. Symonds, the General Manager ,did not approve it giving as his reason the hypothetical nature of the request .

The grievor’s last day at work was September 27, 1982, approximately 48 days after she was informed of what would happen if what was seen to be a hypothetical became a reality . From September 28, to October 4, 1982 she was permitted to take her accumulated vacation . It was on September 30, 1982 that the grievor filed a second application for leave of absence without pay requesting leave from October 1, 1982 to March 1, 1983, giving as a reason a "five-month jail term". This was denied by Mr.Symond and the reason given was: "Consistence with decisions in the past to request of this nature the above application for leave of absence for five months is denied" . When the grievor did not report for work she was initially suspended for a period of three days from October 5, 1982 to October 7, 1982 .On October 8th she still had not reported to work and a letter was sent on that date confirming that her services were being formally dispensed with effective the same date .Before that decisio was taken ,an in-depth analysis was made . There were consultations even up to the President’s Office .

The grievor had occupied the position of Stenographer II .She provided stenographic services to the district Manager and to the customer services manager in Gander. She also provided clerical and stenographer support for two other customer

services manager in two other areas . One of her roles was to lend support to these travelling customer services managers . Dealing with the public was a very important aspect of her job . In that position it was necessary to have somebody who was knowlegeable with the area ,since to a great extent providing information was a major part of the job . Mr.Snook stated that the grievor did a "full average job" in the performance of these duties .

Following the grievor’s discharge her job was filled on an assignment basis . The position was bulletined on October 15, 1982 and an appointment was made . The position has remainned filled since that date .

Following the grievor’s discharge two letters originating from P.O. Box 660, Stephenville , were received from her . The first was dated October 15, 1982 and requested leave of absence for a three-month period from October 1, 1982 to January 1,1983 . The second was dated October 25, 1982 and provided additional information as to why she felt it was reasonable to request a three-month leave . In a letter dated 1982 11 05 Mr. Symonds ,the general manager, invited the grievor to file an application for employment with the company when she was available for work . He stated such application would be considered with others in the event of a vacancy for which the grievor was qualified . The grievor did later make application and was offered employment . It was only a temporary position for a ten-day period pending the result of a bulletin . The grievor at the time had a job which would last at least until the end of September, 1983 and she declined to accept the temporary position .

Under cross-examination ,Mr. Snook acknowledged that although the grievor had written a formal letter requesting leave on August 2, 1982 it was known in May or June that she had been charged with an offence . He was not personally aware at that time as to whether she had made inquiries regarding the possibility of leave should she receive a jail sentence . He did not recall whether she had made any such inquiries to her supervisor . The union representative asked Mr. Snook whether in his direct evidence he had stated the reason for refusing the leave as follows : "Consistent with decisions in the past and company policy ,the company could not and would not consider a request for leave if she was sentenced ,that is ,while she was in prison". He acknowledged that this was basically what he had said . In his opinion she did qualify for leave .His answer meant basically that she were sentenced to go to jail then a leave of absence could not be considered since it would not be in line with company policy . Mr. Snook was referred to a letter dated 1983 03 25 from Mr. Symonds basically reinterating that the grievor had been told on August 10, 1982 that she could apply for leave of absence for her trial but if she was found guilty and sentenced to a term in prison the company could not consider a leave of absence whilst in servitude . Mr. Snook stated this is a consistent policy with respect to any employee ,i.e. there is no leave for a period whilst incarcerated .

Before a decision was made to terminate the grievor ,Mr. Snook had reviewed her record of employment and had checked with her various supervisors . She had approximately nine years of service . Mr. Snook was referred to letters of recommendation that the grievor had received in May ,1983 from Mr. Winston Wellon,

Ms. Bonnie Pritchett and Mr. J.F. Roberts He had no reason to doubt of the favourable comments contained in these letters . He could not say that she was an excellent employee because he did not have a close working relationship with her .

Mr. Snook was asked whether or not the length of the grievor’s sentence entered in the decision not to grant her leave . His response was in the negative . Even if the period of incarceration were only ten days he would have to say that the decision would be the same . It would also have been the same with any type of offence . The main consideration was that the absence would be disruptive to the company function . If the grievor’s position were one that could be vacant for awhile the situation might have been different .

The grievor’s job was filled through the procedures stipulated in the collective agreement . The company had some difficulty in getting a fully qualified person to fill the job . The company policy would not permit a temporary assignment for the period of the grievor’s incarceration . Mr. Snook acknowledged that there was no one immediately available who could fill the full requirements of the job . The company had tried to recruit from within and even if it could find somebody who was marginal it would give that person a chance to qualify . If the company had granted the grievor leave there would be a problem with interfacing with customers in a proper customer relations manner .

Finally ,Mr. Snook was asked about his interpretation of the supervisor personnel manual . He stated that nowhere in the manual is it stated that a jail term can entitle a person to leave . His interpretation is that for a jail sentence the manual does not provide for a leave of absence . He did not consider that the present situation fits the purpose and intent of the clause dealing with leaves of absence for "Urgent Private Affairs".

In its argument, the company maintained that the grievor sought information concerning the company policy with respect to leaves of absence . The first formal application for leave requested a period of five months . That is the operative action upon which the decision to deny leave was based . The question is what did the company face at the time the decision was made not to grant leave and then finally to terminate the grievor ? The collective agreement at article 22.4 makes no provision for an employee to apply for five months’ leave . The grievor acknowledged in her letter of October 25, 1982 that she understood the company’s decision with respect to her request for five months’ leave . This period was beyond that which is permitted in the collective agreement .

The rules and regulations of the company set out the policy with respect to the granting of leaves of absence . General purpose leave can be granted under clause 4.51 for Urgent Private Affairs This is not intended to cover the situation where a person puts himself into a position where an illegal activity brings serious consequences .

The decision not to grant leave to the grievor was a matter which was not taken lightly by the company . It was considered by Mr. Snook ,by the General Manager in Newfoundland and by officials of the President’s Office . Considering all the circumstances the final decision was not to grant the leave . The grievor was prevented from performing her services on behalfof the company and the business had continue with the least possible disruption . The company has no quarrel with the grievor’s workperformance as attested to by the references she was given . She was also offered a

temporary position after her period of incarceration was over .

The grievor’s job involved a crucial and criticalfunction on behalf of the company. Imediate action was required to fill it in accordance with the collective agreement . It ws not a mere clerical job but rather was an important interface between tha company and its customers . As it turned out, the company had some difficulty in finding a qualified individual but it would have no idea that this would be the case at the time the grievor was refused leave . Her job could not have been left vacant because of the disruption that would be caused to the Company . The Company did not leave the position vacant at any time .

A fundamental breach of contract occurs when an employee puts himself in a position where he cannot fulfill a paft of the bargain ,that is ,the provision of services . The grievor was required to report for work unless she had a leave of absence . When a request for leave of absence is received ,the Company has a discretion whether or not to grant such leave . In the present case ,the fact that the leave would be very disruptive was a prime factor considered by the Company . Further ,the application was for a period of five months and the maximum that the Company could grant was three months .

The Company representative introduced a series of arbitral precedents dealing with the granting of leaves of absence to employees . Some of the cases involved the inability of an employee to perform his duties because of incarceration . Some awards reiterate an employee’s legal obligation to be at work and the employer’s right to terminate if he does not present himself for work . An employer has an interest in being free from productivity disruption and this has be balanced against an employee’s work record ,the nature of the offence he has committed and the duration of the jail sentence he must serve .

In the present case ,the grievor was sentenced to a fifteen-month term . Even if it were reduced to a five-month period this would be too disruptive for the Company to leave vacant . None of the cases referred to deal with a period as long as fifteen months and the Company asked what would happen if an individual were sentenced to two years or three years, i.e. does length of the sentence make a difference to whether leave should be granted . In making such a decision one must also consider how difficult it would be to train somebody to replace the person who has requested leave . In the present case the position could be filled the day after the grievor left . In summary ,the Company stated that in matters of this kind it is essential to look at the degree of disruption caused by the period of absence and also the length of incarceration . The Company had properly assessed the situation and was within its right to refuse to grant a leave of absence to the grievor . The company asked that the grievance be denied .

The Union took the position that since the present grievance involves a discharge the onus is on the Company to proceed first with its evidence .The grievor, an employee with nine years seniority, had been charged with an offence under the Narcotic Control Act. A prison sentence loomed so she applied for a leave of absence . The response she initially received was that no consideration could be given to her request if she received a jail sentence . In September, 1982 she was sentenced to fifteen months . At that time she

applied for five months’ leave but her request was denied . On September 29, 1982 she started serving her term and on October 8, 1982 she was informed that her employment had been terminated . The Union suggested that the dispute involves two issues .

First of all, was the Company’s denial of the grievor’s request for a leave of absence in violation of the Collective Agreement ? Secondly, was there just cause for termination of the grievor ?

The Union witness was the grievor, Mrs. W. . She stated that on September 28, 1982 she had been given a fifteen-month jail sentence . On October 8, 1982 she was terminated in her employment with the Company . She had nine years’ service and was a Clerk III Stenographer in the Manager’s Office . During her employment she had a good working relationship with her supervisors .

Since June 13, 1983 the grievor has been employed as a Security Assistant with Transport Canada at Gander International Airport . Her gross salary is $302.00 per week . At the time of her discharge she was receiving $349.00 per week and there have been several raises since that time . Also, the position she occupied has been upgraded to a Clerk IV. The grievor introduced into evidence several letters of recommendation that she had received from her former supervisors . These all contained very positive comments about the grievor’s work record .

After the grievor had been charged on May 3, 1982, she took several days vacation leave because she was upset . She discussed it with her manager at the time and they went over the personnel manual to see if there was a section stating that she would not be permitted to take leave if she received a jail sentence . The manager suggested that she prepare a letter and submit it to the Manager of Employee Relations .She was notified that she could receive leave to attend a court hearing but if she was convicted and sentenced she would not be given leave . She finally submitted formal application for leave of absence without pay covering a five-month period . The response she received was that leave would be denied . The grievor later found out that she would be guaranteed full parole withih a five-month period and that she would be eligible for day parole . She applied for leave of absence for a three-month period . She was told that if she had a job waiting for her, then her term of incarceration would end on December 13, 1982 . If there was no job waiting it would end March 1, 1983.

At the time the grievor’s request for leave was denied she was not told the reason was that to grant her leave would create problems for the Company . To her knowledge the job was temporarily assigned to another individual . It was later posted and the Company could not find anyone with the necessary qualifications . Therefore another bulletin was issued . The Company policy changed at the time so as to give a person time to qualify in a position . A person was appionted and failed the test . This led to another bulletin with the appointment of another person who subsequently left . A bulletin was then posted in March, 1983 and a person appointed to the position . The grievor is not aware of whether that person has done the test and is now full time . During the period of her incarceration there was one temporary assignment and three people given the job as a result of a bulletin . When the bulletin was released she approached Mr. Symonds and Mr. Snook and advised them that she was now ready to go to work . They said that as far as they were concerned the job was filled .

Under cross-examination, the grievor acknowledged that portions of the work that she was doing were crucial to the Company’s operation . She said that when she was sentenced she was not guaranteed that she would be out in five months . The police officers had told her that the chances are she would be released within that period . She understood that parole was not a certain thing but that, based on the circumstances, there was every likelihood that it would be granted .

If the position the grievor occupied was not filled it would have been disruptive to the Company, although since the Company had knowledge of what might happen somebody could have been placed in it on a temporary basis, therefore minimizing any disruption . The grievor acknowledged that she was after her release from prison offered employment with the Company . She acknowledged that if the position she had held were to become vacant she would certainly apply for it .

In conclusion, the grievor stated that she made every effort to minimize the disruption her leave would cause the Company by giving sufficient lead time so that some action could be taken . The grievor was aware of individuals in the Company’s employ who had shorthand qualifications and could fill the job, particularly if she worked with them for a period of time to orient them in the position . This arrangement was not made .

In its argument, the Union suggested that the present grievance involves two issues . First of all was the Company’s denial of the grievor’s request of a leave of absence in violation of the agreement ? Secondly, having regard to all the circumstances was there just cause to discharge her from employment? Reference must first be made to Article 22.4 of the Agreement . There is no doubt that the granting of leave is at the discretion of the Company . However, in the present case, rather than exercise that discretion the Company elected not to consider her application but to unequivocally deny her access to the provisions of Article 22.4 of the Agreement .

There is arbitral precedent which suggests, with respect to leaves of absence, the discretion of the Employer must be exercised reasonably and based on a consideration of all relevant factors . There has to be a balancing of the employer and the employee interests . In the present case, the Company did not exercise its discretion . In fact, it made an arbitrary decision not to consider the factors . The statement was simply that if the employee is sentenced to the jail term she will not be considered for a leave of absence . The Union stated that, even if there were no contractual obligation to grant leave or to exercise discretion, there are a number of cases which demonstrate that an employer does not necessarily have a right to dismiss an employee simply by reason of the fact that he could not come to work because of a jail sentence .

Prior to 1974 arbitrators had generally upheld an employer’s decision not to grant leave to an employee who received a jail sentence . This changes with the decision of Arbitrator Shime in Re Alcan Canada Products Ltd. where he reviewed the factors that must be taken into account by an arbitrator in assessing an employer’s decision not to grant leave . One of the main factors for consideration is whether the production needs of the Company are taken into account and what affect the grievor’s absence would have in terms of causing a disruption in production . In the present case, when the decision was

taken not to grant leave there was no consideration of whether the leave would cause a disruption to the Company’s operations . It was merely the sentence for trafficking that led to the Company’s decision . It was only after the grievance was filed and correspondence took place that the Company began to look at any disruption the grievor’s leave might cause . This is contrary to the principles established in the Alcan case .

A second case referred to by the Union was Re Corporation of the Borough of York, an 1981 decision by Arbitrator Beatty . In that case an important consideration was that to grant the leave would not cause a disruption in fire protection services since it would take a considerable period of training to replace the grievor . In the present situation the grievor would probably have been out of jail in December if her job could have been available . In the Borough of York case the Arbitrator concluded that the Company did not act reasonably in denying the grievor’s request for a leave of absence . Other cases were referred to in support of the Union’s argument that in making decisions on requests for leaves for absence an employer must act reasonably and take into account the interests of both parties .

Although Article 22.4 provides that it is within the Company’s discretion to decide whether or not to grant leave, there is nothing which prohibits the granting of such leave for a period of incarceration . It can be argued that when the policy was introduced it did not contemplate covering a period of a jail term . This does not mean that the policy prevents the exercise of the discretion to grant leave under such circumstances .

In conclusion, the Union reviewed the facts which caused the dispute . The only thing that entered the consideration of the Company when leave was requested was that it would not grant leave to any person who was sentenced to jail . On August 10,1982 the grievor was advised orally that , although she could apply for leave for a trial, she would not be granted leave if she were sent to jail . She was later told that if she did go to jail no consideration would be given for leave . Thi was confirmed by7 the testimony of Mr. Snook at the hearing . A letter dated March 25, 1983 from Mr. Symonds reiterated the Company position on this matter . There was absolutely no exercise of discretion and consideration of the interests of the grievor in respect of that decision by the conpany . In the present case we have an employee with an excellent work record and ability and service . The offence for which she was charged and sentenced involved an incident which happened two years prior to her termination . She had a total of nine years’ service with the Company . The incidentwas not a Company-related offence and did not cause embarrassment to the Company . In fact, she did receive a subsequent offer to return to work with the Company . There was no indication that her absence would have caused a major problem for the Company and in fact it would be necessary for a replacement to undergo a considerable training period . The grievor was led to believe that she would be out of prison in early December if she had a job to which to return . Thus, the problems might have been minimized if the Company had given her assurance that a job was available .

In this case, the award ought to be that the grievorshould be reinstated in her position retroactive to the time that she was released from her period of incarceration . She did receive compensation from another source since her release and this would have to be taken into consideration in determining compensation . In conclusion, the Union asked that the grievance be upheld .

CONSIDERATIONS AND DECISION OF THE ARBITRATOR

The present grievance arises out of the refusal of the Company to grant a leave of absence without pay to the grievor while she was serving a period of incarceration and her subsequent termination by the Company because she was "not available to attend and continue the job requirements". At the arbitration hearing convened to hear the grievance the parties submitted a Joint Statement of Issue which set forth the facts of the case :

"JOINT STATEMENT OF ISSUE

In a letter dated August 2, 1982 the Grievor wrote to the Manager

of Employee Relations to obtain the Company’s position with respect to the possibility of an application for leave of absence ‘with reference to a legal matter in which she was deeply involved’ . On August 10, 1982 she was advised orally through her Supervisor that she could apply for leave of absence for a trial but that leave of absence could not be granted during imprisonment . On August 18, the grievor submitted an application for General Purpose Leave of Absence from September 6, 1982 to December 6, 1982 with an explanation: ‘Possibility of sentencing due to present legal charges’ . The application was denied on August 20, with the following comment by the company:

‘Due to the hypothetical nature of this request, we are

unable to recommend approval’.

The last day the Grievor was at work was September 27, 1982 and was on vacation from September 28, to October 4, 1982 . On the 29th day of September, 1982 at Gander in the Provincial Court of Newfoundland before Judge Owen Kennedy the Grievor was convicted and sentenced in that she did between the 31st day of May, A.D., 1980 and the 15th day of November, A.D., 1981 at or near the Town of Gander did unlawfullyconspire with Christopher Jackman and with another person or persons unknown to unlawfully possess a narcotic, to wit : Cannibus Resin, for the purpose of trafficking, contrary to Section 4(2) of the NarcoticControl Act, thereby commiting an indictable offence contrary to Section 423(1) (d) of the Criminal Code and that the said Judge sentenced her to serve 15 months in Her Majesty’s Penitentiary and to be placed on probation for a period of two years

It is clear from the evidence that the grievor, as early as May, 1982 had alerted the Manager, Mr. Wellon, of the possibility of a jail term following from the charges against her . She was anxious to ascertain whether the company would permit a period of leave during the serving of a jail term . Her initial inquiry and further formal applications all led to a consistent position by the Company, i.e. leave of absence for a period of incarceration was not permitted by the Company policy with respect to such leave . There was a series of correspondence between the grievor, the District Chairman of the Union and various Company officials debating the position the Company had taken . The following letters serve to summarize the essence of the disagreement between the parties:

"April 22nd, 1983 .

Mr. D.C. Campbell,

President and Chief Executive Officer,

Terra Nova Tel,

151 Front St. W.

Toronto, Ontario.

M5J 1G1

Dear Mr. Campbell:

This as reference to a grievance submitted on behalf of Mrs. W., concerning the denial of her application for a leave of absence and her subsequent dismissal from the Company .

The facts of this matter are as follows:

As early as May 1982, Mrs. W. inquired as to the possibility of being granted a leave of absence should an impending criminal action against her result in a term of incarceration . She received no definite answer to her inquiries but when on September 29th, 1982, as Mr. Symonds so aptly states in his letter of March 25th, 1983, the

hypothetical also became reality, Mrs. W. applied for a leave of absence to cover the length of her incarceration. Upon denial of this leave she re-applied for a leave for three months from October 1st, 1982 to January 1st, 1983. This leave was also denied and the over-riding reason given was that granting of the leave would guarantee Mrs. W.’s re-employment on the date the leave expired .

No reason was given for the apparent unwillingness to re-employ Mrs. W.. On October 28th, 1982, Mrs. W. was mailed a letter of discharge giving the reason that she was ‘not available to attend and continue the job requirements’. It was exactly because she was ‘not available to attend and continue the job requirements’ , that Mrs. W. applied for a leave of absence in the first place .

Susequently on October 25th, 1982, Mrs. W. informed Mr. Symonds that her application for a day parole which would make her ‘available to attend and continue the job requirements’, hinged upon her job being available . The Day Parole would enable Mrs. W. to resume her job requirements early in December or less than ten weeks from her last attendance at work . The continued denial of the leave of absence also resulted in the denial of Mrs. W.’s early release on Day Parole . I submit it is not within the purview of either of us to judge Mrs. W. nor to add to her punishment . That is for the courts and the correctional authorities to decide and apparently together their decision was that Mrs. W. could again be a productive member of society in mid-December if her former position wasavailable to her . A three-month leave of absence, by no means an unusual request for whatever reason, would have made that possible .

We find considerable irony in the fact that the employee assigned to Mrs. W.’s position could not attain the required skill in shorthand and the job is presently vacant .

A review of this matter pursuant to Article 25.1, Step 3, is requested .

Your truly,

NBH: nw N.B. Hobbs,

National Chairman."

"T-950-X-40-21-423

Mr. N.B. Hobbs

National Chairman

C.A.C.A.W.

Suite 201

15 Collier Street

Barrie, Ontario

L4M 1G5

Dear Mr. Kobbs:

I have reviewed youf appeal on behalf of Mrs. W. .

There have been many cases similar to that of Mrs. W. and from thesse it is clear that the vast majority of arbitratiors have taken the view that where a conviction required an employee to be absent from work to serve a jail sentence, the absence can be characterized as unauthorized and because of necessity it will prejudicially affect the employment relationship . Discharge has been justified ,

It is established that ‘where the grievor had been sentenced to jail after a conviction for trafficking in a controlled drug, thecompany was not in violation of the collective agreement in refusing the grievor leave of absence’. In my review, I have found many cases similar to Mrs. W.’s in which the grievor had been convidted of possion of a narcotic for the purposes of trafficking contrary to the Narcotic Control Act, and was sentenced to a jail term. The arbitrators reviewed several authorities and found, on the basis of those, that an absence from work caused by an employee serving a jail sentence is not a justifiable or reasonable excuse for absence and was therefore an unauthorized absence and cause for discharge. The convictions, in each case was for possession of a restricted drugs and not for something like a driving offence .

It is my conclusion that Mrs. W. voluntarily took a course of action which not only was in breach of the law of the land but which she must have known wold result, if she were caught and convicted. in a mandatory jail sentence . Having, voluntarily assumed such a risk, she cannot complain as to the necessary consequences which have flowed from her being apprehended while violating the laws of the land .

Considering all of the circumstances of this case, I am satisfied that Mrs. W. can hardly be said to be entitled to some equity on the part of the company. Accordingly her record has been closed. It should however be understood that, as far as the company is concerned, Mrs. W. will be given every possible consideration for future employment with Terra Nova Tel. should a vacancy occur to which her specific qualifications could be applied .

Your very truly,

D.C. Campbell

President &Chief

Executive Officer"

The Board can deduce from this correspondence that the Company viewed the grievor’s inability to report to work as resulting from her own wrongdoing and consequently she has no right now to complain about her termination.

In analyzing this dispute it is apparent that there are two distinct issues, the latter depending on the outcome of the first. The first question is whether the Company was in violation of the Agreement, particularly Article 22.4 when it refused the grievor’s request for a leave of absence without pay ? Secondly, was the Company within its rights when it discharged the grievor on October 8, 1982 because she was "not available to attend and continue the job requirements".

Article 22.4 of the Collective Agreement provides as follows:

"Article 22 - Leave of Absence

The supervisors’ Personnel Manual at Section 8/8 provides for Leave of Absence Without Pay (For Other Than Union Representatives). Clause 4.5 deals with General Purpose Leave with subclause 4.51 devoted to Urgent Private Affairs:

Provision is also made for specific exeptions to these exclusions.

The Union contended that the Collective Agreement requires that the Company exercise its discretion in making decisions on whether of not to grant leave and in so doing the Company must act reasonably weighing out the respective interests of the grievor and the Company. One of the main factors it must assess is the effect such leave will have on the normal activities of the Company . The argument of the Company stressed that the grievor’s position was one that was crutial to its operation and that it would cause a significant disruption to have it left vacant for any period of time.

The task of an arbitration board in disputes of this type is very complex . There is a growing body of arbitral law dealing with the respective interests of employees and employers where leave of absence are being requested for reasons of incarceration. It is a fair comment that arbitrators are not unanimous in their approach to the issue .

Brown and Beatty in Canadian Labour Arbitration have at page 298 and 299 summarized the relevant awards decided up to 1976 as follows:

The interesting section for the purpose of the instant dispute deals with the situation where an employer has refused to grant a leave of absence to an employee who was required to serve a jail sentence.

The Company has introduced a series of cases in support of its contention that it was within its right to refuse to grant the grievor’s request for leave. I shall deal with the relevant cases seriatim to see where similarities exist in the present case as compared to these awards.

In Canadian National Railway Company and Brotherhood of Maintenance of Way Employees (Weatherill, 1983), the grievor was sentenced to two months for trafficking in narcotics. He was discharged "because he did not report to work and had not made timely arrangements for leave". In fact he only requested leave after he began serving the sentence. "The grievor was devious and appears to have been uncooperative at every stage". The arbittrator concluded there was just cause for his discharge. The distinction between that case and the instant dispute is obvious, particularly insofar as the grievor’s early approach to the Company and her open and cooperative manner are concerned.

The reported decision, Re Kimberly-Clark of Canada and United Paperworkers International Union, Local 655 (1983), 10 L.A.C. (3d) 241 (O’Shea) involves the discharge of an employee who had been convicted of trafficking in drugs and sentenced to six weeks in jail. In the analysis, the board notes the grievor had been "apprehended in the camp dormitory in possession of LSD for the purpose of trafficking ....". It is further observed that "the grievor failed to take advantage of geing forewarned of his jail sentence by requesting a leave of absence in writing from the mill manager as required by the rule 1(a), in view of the expected duration of the jail sentence". In reaching its decision to deny the grievance the board was very much influenced by a number of factors not present in the dispute before this board. At page 250 the following comment is significant:

The board went on the emphasize the need to weigh the respective interests, obligations and rights of the parties. It concluded on the evidence that the company acted reasonably, if not prudently, when it denied the grievor’s request.

Obvious distinctions exist between the present case and the one just cited, most notably the conclusion that in that award leave was reasonably denied merely on the basis of the fact the offence was committed on company property. Also, there was the concern for the numerous requests for leave and the fact the grievor had a relatively short period of service .

In Re Stelco Inc and U.S.W.(1981), 1 L.A.C. (3d) 322 (Welling), the board had to consider where the company acted properly in refusing to participate in the grievor’s attempt to become involved in a Temporary Absence Program (i.e. a program which allows an individual to work during the day while being incarcerated in his off duty hours.) The grievor had been sentenced to six months in jail for drugs trafficking. The board made a great deal out of the fact the agreement was silent on the point of the T.A.P. program. In another similar case, an arbitrator was "wrong in imposing a board of arbitration’s judgement as to the reasonableness of management’s decision absent any particular requirement on this point in the collective agreement". The conclusion reached at page 329 was that "The company clearly did not violate the collective agreement in refusing to participate in the T.A.P. program as the collective agreement is silent on this point", and at page 330, "The Union has pointed to no term in the collective agreement inhibiting the company’s ability to do so" (viz to participate in the T.A.P.).

The Re Stelco award involves a fact situation quite different from the instant one where in our case the Collective Agreement makes Specific provision for a leave of absence and requires the Company to exercise discretion in accordance with its rules and regulations in determining whether such leave should be granted.

Some of the earlier awards referred to by the Company reflect the view that an employer is within its rights to refuse to grant leave where a jail sentence is imposed and an employee is absent for a period of time as a result . The rationale for such conclusion is based on the fact that the employee is the author of his own misfortune and provided the discretion is properly exercised and no discrimination or improper motive is shown, an arbitrator has no right to overrule the decisions of the company on what would be purely compassionate grounds. ( Re United Automobile Workers and De Havilland Aircraft of Canada (1960), 11L.A.C. 41 (Cross); Re U.S.W. and Steel Co. of Canada (1956) 6 L.A.C. 316; Re U.E.W. and Canadian Westinghouse (1956), 7 L.A.C. 94.

In Re Oil, Chemical & Atomic Workers and Fiberglas Canada Ltd. (1958), 8 L.A.C. 111 (McRay) the arbitrator reviewed earlier decisions dealing with denial of leave to serve a jail sentence and was much influenced by the grievor’s record of absenteeism in deciding the company did not have to grant leave.

More recent awards have approached the question of leave for a period of incarceration with somewhat of a more restrictive attitude towards the exercise of the employer’s discretion as to whether or not it need to grant such leave. In re Payette & Sons Inc. and Syndicat des Arts Graphiques (1978) 18 L.A.C. (2d) 330 (Frumkin) the arbitrator at p. 334 provided the following analysis:

The arbitrator went on the conclude that based on the facts as presented, the company did not act improperly or beyond the limits of its discretion in refusing leave to the grievor. The major consideration was the fact the grievor’s work record was replete with absences. The company had clearly indicated both orally and in writing that "his persistent and repeated absences could not be tolerated" and the arbitrator found that the imposition of a stern measure of discipline was essential to deal with the grievor’s chronic absenteeism. The ratio of this case is not applicable to the facts which the instant Boafd has been presented with since the grievor has had no known record of prior absenteeism.

In Re Can. Car Div. Hawker Siddeley Canada Ltd. and U.A.W. (1974) 7 L.A.C.(2d) 290 (O’Shea) the grievor had been jailed for a short period of time and made no attempt to obtain a leave of absence and apparently failed to contract the company to advise he was in jail . He hasd concocted a story that, if asked where he was, his son was to say he was in hospital. The collective agreement clearly stipulated the consequences where an individual was absent without securing a leave of absence. The arbitrator also took into account the attempt to deceive the company as one of the factors in deciding to deny the grievance.

The Union and the Company both referred to Re Alcan Products and U.S.W. (1974) 6 L.A.C. (2d) 386 (Shime). The five other cases introduced by the Company were more recent (1979-1982) than the awards that the Union relied upon in support of its position. The Alcan Products case is the one that the Union maintained introduced the proper approach which arbitrators should take the assessment of an employer’s decision on whether or not leave of absence should be granted to an employee who has been sentenced to a jail term.

In that case, the grievor had been charged and convicted of driving while his license was under suspension and was also charged with careless driving. He was sentenced to a jail term totalling 41 days. He requested a leave of absence to cover the jail term but the company refused and terminated him since he did not have an acceptable reason for being absent from wotk. The company was of the opinion that the grievor was slightly below average as an employee, that he did not have a good relationship with his fellow employees and that, since he was a short-service employee of approximately four years, it would not grant him a leave of absence. The company was of the view the grievor "had a temper, was immature and was irresponsible".

The arbitration board reviewed the legal principles involved in the issue starting with the majority of the awards supporting the view that the company had an almost complete discretion as to whether it would grant an employee leave of absence to serve a jail term. Departures from that position were expressed in Re Canadian Salt Co. Ltd. and U.A.W. Local 195 (1973), 4 L.A.C. (2d) 127 (Ferguson) and Re United Rubber Workers, Local 232 and Goodyear Tire & Rubber Co. of Canada Ltd.(1967), 18 L.A.C. 403 (Adell) where the automatic right of the company to terminate an employee for absence from work as a result of a jail sentence was not upheld. The arbitrators in those cases were prepared to look behind the absences in assessing whether the company had the right to dismiss the employee. Anumber of American cases supporting this position were also reviewed.

In Re Alcan, the majority of the board went on to conclude that the company had not properly exercised its discretion in denying the grievor a leave of absence. That discretion was found reviewable to the extent that the board of arbitration must ensure that in exercising its discretion the company considered all the relevant factors. The reasoning employed by the majority at p. 393-394 is worthy of quoting at lenght, particularly insofar as it analyses the respective interests of the employer and the employee:

In that case there was no evidence whatsoever that the production needs were considered and that the grievor’s absence caused a disruption in production.

The second case referred to by the Union was Re York and York Fire Fighters Assoc. (1981), 1 L.A.C. (3d) 304 (Beatty) . The grievor, a firefighter, had been sentenced to serve six months in jail as a result of a motor vehicle accident. His request for a laeve of absence to serve this sentence was denied and he was discharged for being absent from his duties without permission. The parties based their submissions on a "balancing of interests" principle which, it was acknowledged, has come to be followed by a majority of arbitrators in recent years and in which the production and manning requirements of the employer are balanced against the interests of the employee in maintaining his or her employment status in determining whether a requested leave of absence ought to be granted or denied. Arbitrator Beatty proceeded to find that there was no evidence that the employee’s interest in its manning and production requirements would have been inconvinienced or in any way prejudiced by granting the grievor the leave he sought. The salient point as it relates to the instant case is that by the time a new employee could have been hired and trained, the six-month period the grievor was requesting as a leave would have elapsed. It was noted at p. 308 that :

This comment has particular significance for the situation which existed inthe present case where the grievor’s knowledge and expertise made it very difficult to find a replacement who could function effectively in her job without a considerable amount of training.

Re Metro Transit and Canadian Union (1982), 7 L.A C. (3d) 398 (Thompson) supports the reasoning of re Alcan (Supra) and Re York and York Fire Fighters Assoc. (Supra) in concluding that an arbitration board in reviewing an employer’s decision not to permit a laeve of absence must determine if the employer’s action was reasonable when examined in terms of the absence would have caused the employer only certain administrative problems and minor financial costs and that when the interests of the two parties were balanced, the employer’s action was not reasonable.

Against the background of the cases cited, this board must come to a decision on whether the Company was acting within its rights when it refused to grant the grievor’s request for leave. We acknowledge that there has been a trend away from allowing an employer the unfettered right to decide on whether, in such circumstances, leave is to be granted and that the current approach is to balance the respective interests of the employer and the employee. In evaluating those interests an assessment of the effect such leave could have on the production needs of the employer and the overall disruption it would cause are of considerable importance. The cases suggest that the employer must, in making its decision, go through the exercise of evaluating the impact of such leave on its operations.

The evidence before this Board is patently clear on what the Company considered to refuse the grievor’s request. The testimony of Mr. Snook, Manager, Employee Relations, at the hearing was that :

Refence had been made in Mr. Snook’s testimony to the importance of the grievor’s position and the and the absolute necessityof having it filled as quickly as possible. Also, correspondance from Company officials subsequent to the grievor’s termination reiterated the importance of her position and the difficulties thar would result if it had to be vacant for any period of time. There is no doubt that the grievor’s position was an essential component in the operation and the Company was concerned about the need to fill the position. The evidence on this point, however, does not override the clear fact that the decision to refuse leave was based essentially on the Company’s view that leave to serve a jail term wes not permitted by Company policy.

The board has reviewed the policy. Certainly , there is no express statement giving, as a right, an entitlement to leave to serve a jail term. Neither is there in Clause 2.5 of Section 8/1 of the Supervisors’ Personnel Manual an express prohibition against laeve for that purpose. The company under Article 22.4 must exercise its discretion and the arbitral principles require that, in so doing, consideration must be given to the balancing of the employer’s interest in having production free from disruption againts the employee’s work record, the nature of the offence and the duration of the jail sentence.

There is undisputed evidence that the grievor had an unblemished service record with the company for a period of approximately nine years. She was highly regarded and occupied a position of support to a number of individuals. The offence she commited was not related to work and had occurred a couple years prior to the termination. She took all reasonable steps to forewarn the company of the likelihood of a jail term. Her intention was to encourage the Company to have someone work closely with her for a while so as to minimize the impact of the absence she sought. The sentence was for a lengthy period of 15 months, but there was every indication a maximum of five months would be required and that the Company’s support a Day Parole could be achieved so as reduce the actual period of leave required.

The Company, quite naturally, was anxious to fill the grievor’s position . As it turned out and we cannot factor this in our decision, the Company was most unsuccesful in its efforts to replace the grievor during the months of her incarceration. It should have considered the amount of training required to bring a replacement to the level of competence of the grievor and as in Re York and York Fire Fighters Assoc. (Supra):

We do note that the grievor’s initial request was for a period of five months and that this was greater than the three months initial period permitted in the policy . This request does not ipso facto mean that it could not be processed as a request for leave and the maximum initial period be granted. Provision, of course, does exist in the manual for an extension beyond the initial period.

In smmary, the Board is led to conclude that the Company acted improperly and did not exercise its discretion reasonably when it refused the grivor’s request for leave essentially on the ground that its policy did not permit leave to serve a jail sentence. An arbitration board in a case such as this is compelled to balance the respective interests of the employer and the employee and, after a thorough review of the evidence and the arguments, we find the Company’s action in denying leave was not reasonable. The consequence of that decision is that the Company acted unjustly when it discharged the grievor for being absent from her duties without permission.

The grievance is allowed and the grievor is to be reinstated to her employment forthwith upon the receipt of this award by the parties. Based on a consideration of the whole situation we are inclined to follow the approach adopted in Re Alcan (Supra) and order that the grievor is not entitled to compensation for the period up to her reinstatement, nor is she entitled to have her seniority accrue for the period of her absence. It is understood, however, that the position has been upgraded since the time of the grievor’s discharge and she will be placed into at the upgraded classification level.

Respectfully submitted as the majority decision of the board.

St. John’s Newfoundland

84102

February 27, 1984 - Date draft award forwarded to nominees.

March 14, 1984 - Date final award forwarded to parties and nominees.

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Mr. Wayne Thistle, Chairman

Dissent attached

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Dr. Fred Russell, Company Nominee

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Mr. Wayne Russell, Union Nominee

IN AN ARBITRATION

BETWEEN:

THE CANADIAN ASSOCIATION OF COMMUNICATIONS

AND ALLIED WORKERS

(The Union)

- and -

TERRA NOVA TELECOMMUNICATIONS INC.

(The Company)

RE: Discharge of Lorraine W.

DISSENT - F.W.RUSSELL

I have reviewed the majority award of my colleagues in the above arbitration and I regret I am obliged to dissent from that award.

On page 25 of the majority award it sstates, :In analyzing this dispute it is apparent there are two distinct issues, the latter depending on the outcome of the first. The first question is whether the Company was in violation of the Collective Agreement, particularly Article 22.4, when it refused the grievor’s request for a leave of absence without pay?Secondly, was the Company within its rights when it discharged the grievor on October 8, 1982 because she was not available to attend and continue the job requirements?"

I agree that the above are the specific questions which the Board was required to answer. The odd think is that the majority award does not answer either! The only reference to a ’finding’ is on page 41, paragraph 2, where the majority award states, --- " the Board is led to conclude that the Company acted improperly and did not exercise its discretion reasonably when it refused the grievor’s request for leave essentially on the ground that its policy did not permit leave to serve a jail sentence." and further, --- "we find that the Company’s action in denying leave was not reasonable."

Although the finding above might be said torelate vaguely to the second question which the Boardwas required to answer it certainly does not address it fully because the question is, " was the Company within its rights?" The finding above is that the company did not exercise its discretion reasonably. However, if the Company was within its rights when it exercised its discretion it does not matter whether it exercised it reasonably or unreasonably! None the less I do not agree that the Company exercise its discretion in an unreasonable manner and I will address that later in this minority award.

Was the Company in violation of the Collective Agreement? The majority award, as I have said, does not answer this question but the obvious answer is ‘no’ as there was not a shred of evidence put forward by the Union at the hearing which would establish that the Collective Agreement was violated by the action of the Company.

A lot of importance appears to have been placed on the word ‘discretion’ by the Union and in the majority award. As cited on page 26 of the majority award the Union contended at the hearing that, --- "the Collective Agreement requires that the Company exercise its discretion in making decisions on whether or not to grant leave and in so doing the Company must act reasonably weighing out the respective interests of the grievor and the Company." The majority award finds that,--- "the Company acted improperly and did not exercise its discretion reasonably----"

Let us look at the dictionary meaning of the word ‘discretion’. The Random House Dictionary gives the following meaning :

Both the Union and the majority award use the word ‘discretion’ as if there is an obligation inherent in the word that one must act reasonably, fairly or equitably if one is exercising one’s discretion. It will be obvious from the clear, unequivocal dictionary meaning that no such construction can be placed upon this word. Therefore, in this instance the company had the clear right to act according to its own’judgement or choice - at its own option or pleasure’ subject only to that action not being in violation of the terms and conditions of the Collective Agreement between the parties and, in particular, Article 22.4. LEAVE OF ABSENCE, of that Agreement.

On page 27 of the majority award a section of Brown and Beatty, pages 298 and 299, is cited. The main thrust of this excerpt, as it applies to this grievance, is the position that refers to the question of a leave of absence when an employee is serving a jail term. Namely, --- "the majority of the awards upheld an employer’s refusal to grant a leave of absence to an employee who was required to serve a jail sentence ---". In the face of this most significant finding the majority award elected instead to quote the single instance where anaward did not uphold an employer’s right to refuse a leave of absence to an employee serving a jail sentence !

Additionally, the great majority of the arbitration awards presented to the Board at the hearing and other jurisprudence examined upholds th eright of an employer not to grant leave of absence to an employee serving a jail term. In the majority of those few cases which found against the employer the circumstances were quite different from the grievance before us in that the jail terms were much shorter or the production of the companies would not be impaired by the short term absence of the employee in question.

In arriving at its decision that the Company considered only the jail term and did not balance the respective interests of the employee and the Company when it denied a leave of absence to the grievor the majority award appears to have reached this conclusion based on three sketchy bits of evidence by Mr. Snook, the Employee Relations Manager of the Company and on one short excerpt from a letter of March 3, 1983 from Mr.R.F. Symonds, the General Manager of the Company . This sparse evidence was certainly not enough to convince me that the Company did not consider all the circumstances,known to them at the time, before it denied the leave of absence to the grievor.

For example:

(1) In a letter dated October 8, 1982 from Mr. W. D. Wellon, Manager, said to Mrs. W. - "The position of Clerk 3 (stenographer) which you occupied in this office must be filled forthwith."

Here, then, are excerpts from two letters written by the grievor’s Manager, at the time the request for a leave of absence was still being reviewed where no mention of the grievor’s jail sentence is made and where the clear unequivocal statement is made that, "all the circumstances had benn considered". Instead of citing these very relevant examples of the motivation of the Company at the time the various requests for a leave of absence were being reviewed the majority award has chosen instead to quote from a small portion of the evidence given by Mr. Snook and another small excerpt from a letter written by Mr. Symonds long after Mrs. W. had been released from jail.In my opinion none of the examples used in the majority award carry as much weight as the actual words of the grievor’s supervisor at the time the request for leave of absence was being reviewed by the Company .

It was my distinct impression at the hearing that much of the evidence and opinions expressed by the Union hearing were based on hindsight. I now find that the majority award also appears to have been motivated in part by what happened after the grievorcame out of jail rather than trying to place itself in the position of the Company at the time the decision had to be made and base any conclusion on the facts that the Company had available to it at that time. For exemple, on page 37, paragraph 3 of the majority award it states, --- "the grievor’s knowledge and expertise made it very difficult to find a replacement who could function effectively in her job without a considerable amount of training. "Here , in my opinion the majority award has fallen into the same trap as the Union. The company did not know at the time the request for a leave of absence was refused that the position would be difficultto fill. This only became clear after they had advertised the vacancy. All they knew at the time was that a key employee had been sentenced to 15 months in jail. The actual length of time the grievor would be incarcerated was, as the Company stated at the time, purely hypothetical. If they had some knowledge of the Parole Regulations they would have ascertained that, "Most inmates are eligible for full parole review after one-third of their sentence has been served." Therefore, if Mrs. W. was granted full parole she would be out of jail in five (5) months. However, this parole in five (5) months was by no means guaranteed. When reviewing an application for parole the Parole Board is required to take some fifteen (15) factors into consideration. If one or more of these factors is unsatisfactory the parole is not granted.

The question of day parole arose at a later date. Day parole is usually granted for a specific purpose and for a limited period of time. While on day parole the person is normally required to continue living at the institution where they are serving their sentence or perhaps in a community correctional centre or a community residential area. None of these exist in Gander.

From the above it is clear that neither regular parole or day parole was a certainty which the Company could rely on with complete assurance at the time it was considering the grievor’s request for a leave of absence . Certainly, the maximum leave of absence contained in the Collective Agreement was three (3) months for those reasons which were listed in the regulations. However, incarceration in jail was not among the reasons listed for which a leave of absence might be considered by the Company.