AH 234

 

 

 

IN THE MATTER OF AN ARBITRATION

 

 

BETWEEN:

 

 

CANADIAN UNION OF TRANSPORTATION EMPLOYEES,

LOCAL NO 6

 

(the ”Union”)

 

 

AND

 

BRITISH COLUMBIA RAILWAY COMPANY

 

(the “Employer”)

 

 

IN THE MATTER OF THE GRIEVANCE OF Parmjit Singh Randawa

 

 

 

Sole Arbitrator:            H. Allan Hope, Q. C.

 

 

There appeared on behalf of the Employer:

                                                                Mary E. Saunders, Esq.

 

 

There appeared on behalf of the Union:

                                                                Terry Robertson, Esq.

 

 

A hearing in this matter was held at Vancouver, British Columbia, on the 1st and 5th days of May, 1982.

AWARD

 

I

                In this arbitration the Union seeks the reinstatement of an employee whom the Union alleges was unjustly dismissed on December 22, 1981. The Employer takes the position that the grievor terminated his own employment by reason of his failure to report for work. The issue in dispute, in first instance, turns on the interpretation and application of a provision of the Collective Agreement dealing with the consequences of a failure on the part of an employee to report for work. That provision is as follows:

Art. 9.9   Notwithstanding the provisions of Section 11.1 of Article 11 and except as may be mutually agreed between the appropriate officers of the railway and the Union, an employee absent from duty without written authority for a period of in excess of five (5) working days shall be considered as having left the services of the Railway of his own accord and the Railway shall be under no further obligation to such employee.

 

                The facts are not in serious dispute. The grievor was employed as a member of a Maintenance of Way crew engaged in the maintenance of the track that forms part of the railway operations of the Employer in British Columbia. He was located in the northern part of the province and worked under the supervision of a supervisory employee called a road master who worked out of Fort St. John. The grievor was first employed by the Railway on June 21, 1978. He had worked in a variety of labouring positions in the Maintenance of Way Department in the years following his initial employment. The grievor is a native of India and, on July 3, 1981, he requested a leave of absence to be combined with his annual holidays to permit him to be away from his employment from November 16, 1981 to March 7, 1982. The application for leave of absence was refused on the basis that the grievor had already taken two months leave of absence earlier in 1981.

 

                During September of 1981 the grievor was temporarily located under the jurisdiction of a different road master, being the road master in Fort Nelson. He renewed his application for a leave of absence on September 11, 1981, this time asking for leave from October 18, 1981 to December 11, 1981 but he did not advise that his previous application had been rejected. The second application was ultimately rejected. The second application provoked a written response from D. J. Forsyth, the assistant engineer in charge of the Maintenance of Way Department. That letter was dated September 24, 1981 and reads in part as follows:

Please be advised that your second request for a leave of absence has been turned down for the same reason as your first. You have already had the opportunity to have a leave from January 13, 1981 to March 22, 1981 and from May 4, 1981 to May 10, 1981. We can not allow you to be absent for a five month period in one year.

 

                On October 5, 1981 the grievor received telegrams from India indicating that his mother was seriously ill. Sometime after October 5, 1981 he approached his road master, Peter Rebagliati, and asked for a leave of absence to return to visit his mother. Mr. Rebagliati initially refused but then granted his request, granting him a leave of absence that would permit him to be off work until November 16, 1981. The grievor assured Mr. Rebagliati that he would be back to work by November 16, 1981. On November 14, the grievor sent a telegram to the road master from India that read “mother is seriously ill”. After November 16, 1981 the road master received a letter from the grievor dated November 14, 1981 in which the grievor advised that his mother continued to be ill, that she was in the hospital and that the grievor would have to stay with her until she recovered. He ended the letter by saying, “Please hold my job until my mother can come at home from the hospital. If you want to contact me write me a letter at this address..” Upon receipt of that letter Mr. Forsyth did write to the grievor. In a letter dated November 30, 1981 he said as follows:

Our records indicate that you were given an emergency leave of absence from October 6, 1981 to November 15, 1981 to return to India to see your mother who was seriously ill.

 

We have since received a telegram on November 14, 1981 and a registered letter on November 26, 1981 from yourself stating your mother is still seriously ill. You have not indicated when you intend to return to work.

 

Please be advised that unless you return to work on December 21, 1981 your service with the British Columbia Railway will be terminated as per clause 9.10 of the Current Collective Agreement.

On December 18, 1981 the grievor sent a telegram to Mr. Forsyth that read:

                I reach before 20th January 1982 mother seriously ill illness certificate follows.

The grievor did not report for work on December 21, 1981 as instructed. His telegram was taken to mean that he intended to remain off work until at least January 20, 1982. In his evidence the grievor said that he intended to convey in the telegram that he intended to return to work by January 20, 1982. In any event , the Employer interpreted the telegram as a refusal by the employee to comply with its instructions and a confirmation of his intention to remain off work regardless of those instructions. The interpretation of the events fairly reflects the evidence. The clear implication of the telegram is that the grievor intended to remain off work regardless of whether he received an extension of his leave. The view of the Employer was put beyond doubt in a telegram sent to him on December 21, 1981. That telegram read as follows:

                Further to my letter of November 30, 1981 advising you to return to work on December 21, 1981.

 

As you have failed to return to work, please be advised that effective December 21, 1981 your services with the British Columbia railway have been terminated in accordance with Article 9.10 of the current Collective Agreement.

 

                That telegram was signed by Mr. Forsyth. In addition to the telegram a registered letter dated December 22, 1981 was sent to the grievor by Mr. Forsyth. That letter repeated the substance of the telegram. The Employer received no response to its telegram and letter until January 19, 1982 when the grievor sought to report for work. It was then confirmed to him that he was considered as having lost his employment pursuant to the provisions of Article 9.9. On the facts one cannot conclude that the grievor had “written authority” to be absent after December 21, 1981. Quite the contrary, he was under explicit instructions to report back to work.

 

The evidence of the road master, Mr. Rebagliati is of significance in two particulars that were unrebutted. He stated that when the grievor first sought leave to respond to the illness of his mother it was denied and the grievor said he would quite his employment with the result that Mr. Rebagliati relented and granted the leave. The second piece of evidence related to an incident in March of 1982. On that occasion the grievor telephoned Mr. Rebagliati and told him that he was going to arbitration to recover his job and his back pay and then quit. Neither of those facts deal directly with the issue in dispute but they do confirm the general attitude of the grievor that he was prepared to put personal considerations above his employment. That general theme is underlined with respect to the events following the granting of leave. The grievor wrote a second letter mailed before he received news of his dismissal that arrived after his dismissal. In it he repeated his intention to remain off work. The Union said the grievor was entitled to refuse to return because of the illness of his mother. The railway took the position that once it has been established that the grievor was absent without authority for the requisite period the matter is no longer arbitrable by reason of the clear meaning of Article 9.9.

 

II

                On the question of the interpretation, the position taken by the Union is that the disputed provision has a meaning different than the clear meaning of the language used that limits its application substantially. The position of the Union is that bargaining for the current agreement took place at two levels, one being negotiations between the Maintenance of Way Officials of the Railway and the Union and the second between the two negotiating committees. The evidence does not support that contention. The principal negotiator and spokesman for the Railway during the negotiations was T. Teichman, the labour relations manager. The principal spokesman for this Union, on e of a number of unions representing the employees of the Railway, was W. R. Carkner. Undoubtedly discussions took place on two levels but Mr. Carkner readily conceded that the spokesman for the Employer capable of binding the Railway was Mr. Teichman and that it was the Labour Relations Department that spoke on behalf of the Railway with respect to all matters relating to the Collective Agreement.

 

                The discussions between Mr. Carkner and the Maintenance Way officials directed themselves to what Mr. Carkner referred to as a “housekeeping” problem, that is, an expedited means of removing employees from the employment rolls who had left the employment of the Railway without notifying management of their intention to leave. But that is not the issue that is addressed in this dispute. The question is whether the provision extends to an employee who is absent without authority who wishes to return to work. That subject, on the evidence, was not addressed expressly or implicitly in the bargaining. Mr. Carkner clearly intended that the clause should be limited in its application but the unilateral intention of one of the parties is unhelpful. One must start the task of interpretation with the basic premise that the obligation of the parties is to reduce their agreement to writing and to have their intentions interpreted from the language they have selected. Some arbitrators, including this arbitrator, are skeptical of the broadening approach to interpretation that has found its way into arbitral jurisprudence. That skepticism must yield to the consensus of arbitrators and regulatory bodies, including the Labour Relations Board of British Columbia, that has emerged in response to the practical difficulties inherent in a more legalistic approach.

 

                In a review of the numerous authorities that address the subject it would appear that there are at least four distinct resources availed by arbitrators in the task of interpretation. They are:

                A) The history of bargaining and negotiations;

                B) Application of the agreement by the parties in practice;

                C) Category of subject matter addressed:

                D) Language selected.

In addressing a disputed interpretation an arbitrator can quickly lose his balance if he does not address that broad range of evidentiary resource with some sure acknowledgement of the adjudicative task at hand and the long-tested principles that confine and direct his search for the real meaning of the disputed provision. This dispute is a cardinal example of the need to maintain some sense of the fundamental task. I repeat, the unilateral intention has been articulated expressly or implicitly to the opposite party and has been accepted so as to provide the essential of consensus that is the necessary basis for a binding agreement. It is necessary to appreciate that the principle of onus has some application to disputed interpretations. The arbitrator must identify upon whom the burden of proof lies. In the application of the burden of proof varying standards emerge and the imposition of the burden will adjust itself to the particular circumstances. Where interpretations are asserted beyond the plain meaning of the language used an arbitrator must inquire into the probability that the parties would record matters fundamental to their bargain in terms that require the creative intervention of an interpreter in order to have meaning.

 

                Some of the standard applications of the doctrine of probability that emerge in interpretation disputes included circumstances where a party asserts an interpretation that appears to contradict the clear meaning of the language itself. A heavy onus reposes on a party who asserts that language should receive some special or limited interpretation. A similar question of probability arises where one of the parties asserts an interpretation of a category of benefit contrary to the accepted industrial relations understanding of that particular category of benefit or provision. Finally, certain provisions require clear language by their very nature on the basis that it is improbable that one or the other of the parties would agree to a particular provision in language that requires the use of inference or imputed intention in order to have meaning.

 

                Perhaps it is as difficult to generalize on the application of the doctrine of probability  and onus to disputed interpretations as it is to generalize on the full range of disputes that can arise with respect to interpretation. The balance of probabilities in a disputed interpretation is not a subject addressed frequently by arbitrators but it does exist and it is of considerable assistance in circumstances appropriate to its application. It applies to the assessment of the evidentiary base upon which a particular interpretation is asserted. It guides the arbitrator in drawing inferences with respect to the intentions of the parties in his consideration of the full body of evidence upon which the interpretation is advanced. It is of particular assistance where the parties allege an interpretation based on inference with respect to a subject matter not addressed directly in the bargaining itself or in the language selected to record the bargain but falling within the terms of the provision.

 

                I have taken some care in sketching the evidentiary aspect of the task of interpretation because the application of onus and probability is of singular importance in the resolution of this dispute. I am of the view that the onus reposes upon the Employer to sustain the interpretation it advances to a high degree of probability. This is a discharge case and this Agreement requires that the Employer establish just cause for all dismissals. The interpretation advanced by the Employer amounts to an assertion that a failure to report for work for five days without written authorization is just cause for dismissal by agreement between both parties. In advancing that interpretation the Employer said, in effect, that once the Railway has proved a five-day absence without written authority the matter is beyond review by an arbitrator. The Employer insisted in its submission that the language of the provision creates a presumption of a voluntary quit, but that approach is not helpful. It is the Employer that initiates the severance of employment by invoking Article 9.9 and it is, in fact, a discharge of the employee by the Employer and hence subject to grievance and arbitration. The real issue is the extent, if any, the Railway must go in establishing just cause beyond mere proof of an unauthorized absence. The question of whether a particular discharge is based on just cause requires a balancing of competing rights and injects an aspect of fairness absent from the usual adjudicative assessment of competing contractual rights.

 

                The leading decision that describes the nuances of that adjudicative assessment by an arbitrator is the decision of the Labour Relations Board of British Columbia in Wm. Scott & Company and Canadian Food and Allied Workers Union, Local P-162 (1976) 1. The Board discussed the nature of the right of continuing employment that exists under a collective agreement on page 3 as follows:

As a result, an employee who has served the probation period secures a from of tenure, a legal expectation of continued employment as long as he gives no specific reason for dismissal…the point  is that the right to continued employment is normally a much firmer and more valuable legal claim under a collective agreement than under the common law individual contract of employment. As a result, discharge of an employee ;under collective bargaining law, especially of one who has worked under it for some time under the agreement. is a qualitatively more serious and detrimental event that it would be under the common law.

 

                Recognition of that enhanced right to continued employment is fundamental in any consideration of a dismissal under a collective agreement where the standard of just cause applies. In the evolution fo arbitral jurisprudence with respect to dismissals under the statutory and collective bargaining standard of just cause the only recognized means whereby an employer can impose an arbitrary standard with respect to a dismissal is by negotiating specific recognition in the collective agreement that certain conduct will constitute just cause for dismissal. Perhaps the most rigid recognition of that contractual approach to just cause is found in the decision of the B. C. Court of Appeal in its review of the decision in Valley Rite-mix Ltd. and Teamsters Union Local 213 (1974) 6 L. A. C. (2d) 339 (Ladner). The B. C. Court of Appeal held that it was within the capacity of the parties to agree by contract as to what constituted just cause for dismissal and that an arbitrator lacked the jurisdiction to review a discharge in those circumstances. (See: Valley Rite-mix Ltd. v. Teamsters Local Union 213 (1975) 1 W. W. R. 985). The provision under review by the Court of Appeal in that decision read as follows:

The Company has the just right to discharge any employee for just cause, incompetency, or absent without leave. Employees shall be notified in writing, the reason for their dismissal.

 

In the Valley rite arbitration decision the arbitrator concluded that the language of the collective agreement was not sufficient to oust the jurisdiction of an arbitrator to review a dismissal as contemplated by the Labour Relations Board in the Wm. Scott case. On page 686 of the Court of Appeal decision McFarlane, J. A. said in his review of the that decision:

The members of the arbitration board were unanimous in finding that Noble was absent from his work without leave and that treasonable excuse for that absence was not established. A majority of the board, however, substituted for discharge the award of two weeks’ suspension and reinstatement of employment without loss of seniority. For directing this substitution of penalty the majority relied on section 98 (1) (h) of the Labour Code…

 

Section 98 (h) is the provision that gives to an arbitrator the jurisdiction to review a discharge and substitute “such other penalty..as the arbitration board considers just and reasonable in all the circumstances.” That was the provision of the Labour Code under consideration in the Wm. Scott case. In the Valley Rite case the Court relied on an extract from the decision of the Ontario High Court in Re Hamilton Street Railway Co. and Amalgamated transit Union in Re Hamilton Street Railway Co. and Amalgamated Transit Union, Division 107 (1972) 22 D. L. R. (3d) 658. The extract appears at page 687 - 688 of the Valley Rite case as follows:

If the effect of section 4.02 recognizing the right of management to dismiss for cause, taken together with section 4.03 which says that reporting for work with an alcoholic breath is sufficient cause for dismissal, cannot be accepted as providing for a specific penalty, one is left with the unsatisfactory conclusion that nothing but a bald statement that discharge is mandatory in such a case can satisfy the subsection. I cannot believe that this was the intention of the legislature.

 

On the basis of that reasoning the Court of Appeal in the Valley Rite case concluded that the provision in question did provide for a right in the employer to discharge for an absence without leave and that the decision of the employer was beyond review by an arbitrator except as to whether the absence had occurred. In this dispute the Employer takes the position that the mandatory language of the disputed provision requires only that the Employer establish that there has been an absence for five days without written authority in order for the Employer to treat the employee as having abandoned his rights under the contract of employment. Certainly the language is mandatory and compels that result on an application of the decision of the Court of Appeal in the Valley Rite case. The provision does not express itself in terms of a five day absence without authority to cause for discharge but that is its effect.

 

Since the decision of the Court of Appeal in the Valley Rite case the subject has come under review by the Ontario Divisional Court in Re Toronto Hydro-Electric System and Canadian Union of Public Employees Local 1 (1980) 111 D. L. R. (3d) 693. That case dealt generally with the rights of probationary employees to have access to the grievance procedure and, as a subordinate question, the extent to which the parties must express themselves in clear language if the just cause standard is to be waived. The context in which that subordinate question arose in the Toronto Hydro-Electric case was in response to the argument by the employer that the standard did not apply to probationary employees. In that case it was noted that the collective agreement required the employer to establish just cause for discharge. The subject is addressed by Linden, J. at page 696 as follows:

A general substantive right to have their employment terminated only for just and sufficient cause was conferred by Article 55.01 on all employees, including probationary employees. Access to the grievance procedure, however, was purportedly withdrawn from probationary employees by Article 36.02. Thus, the probationary employees were given a substantive right, but the machinery of enforcing that right, should they differ with their employer about the substantive right, was denied them. If the withdrawal of the substantive right, given in Article 55.01 to all employees, is to be taken away from probationary employees, that intention should be expressed in clear language. No where in the agreement is there a provision which says, in express terms, that probationary employees may be dismissed without cause.

(underlining added)

 

In addressing the extent to which the parties must express themselves Linden, J. said further at page 697:

This, of course, does not mean that the parties cannot agree to a basis of arbitral review that would render the results of arbitration a foregone conclusion. This was not done here, but the parties might have agreed, for example, that probationary employees may be discharged on the sole discretion of the employer. This would make such a discharge almost impossible to overturn.

The decision of the Ontario Divisional Court in the Toronto Hydro-Electric case was appealed to the Ontario Court of Appeal and the appeal was dismissed, presumably although not explicitly on the ground that the decision of the Ontario Divisional Court was not in error in law. (See: (1981) 113 D. L. R. (3d) 512). An application for leave to appeal to the Supreme Court Of Canada was dismissed (35 N. R. 210).

 

                In a consideration of the decisions of the Court of Appeal in the Valley Rite case and the Ontario Divisional Court in the Toronto Hydro-Electric case I extract the direction that an arbitrator, as a matter of law, must consider whether the parties have concluded as a matter of agreement that a particular category of conduct deserving of dismissal and hence beyond review by an arbitrator. It is my understanding of that high authority that the intention to make dismissal mandatory in response to particular conduct must be expressed in clear and unequivocal language both as to the category of conduct and the fact that mere proof of the conduct will amount to proof of just cause. The parties have agreed unequivocally that an employee who is absent from work without written authorization for a period of five days is subject to dismissal in the discretion of the Employer in the sense that the employer is entitled to treat the absence as a voluntary quit.

 

                I do not agree, however, with the submission of the Employer that those circumstances are beyond arbitral review for the reasons addressed by the Ontario Divisional Court in the Toronto Hydro-Electric case. It would require express language to exclude any provision from the application of the grievance and arbitration procedure. I do agree with the submission that Article 9.9 constitutes an agreement between the parties that specified conduct will constitute just cause for termination of the relationship provided the factual base for the application of the clause is proven on a balance of probabilities.

 

                I do not agree that proof of a five-day absence without written authority necessarily meets the criteria of the provision. The Employer must establish to a balance of probabilities that the leave was unauthorized and the presence or absence of written authorization may or may not discharge that burden. To cite an extreme example, an employee rendered unconscious due to accident or illness and hence unable to anticipate his absence and obtain written authority for it would not fall within the provision.

 

                I conclude that the disputed provision vests in the Employer the right to treat employees who are absent without written authority as having resigned their employment subject to a continuing right in the employee to challenge that decision by grievance and arbitration.

 

                I conclude that the disputed provision vests in the Employer the right to treat employees who are absent without written authority as having resigned their employment subject to a continuing right in the employee to challenge that decision by grievance and arbitration. In mounting the  challenge the Union bears the onus of disclosing that the absence of the employee without authority arose in circumstances that would make it unjust for the Employer to assert its right to rely on the provision in a strict application of the language. Even though the parties are taken to have agreed that an unauthorized absence for five days will constitute a voluntary quit it is necessary that the absence meet the test of being unauthorized in the sense of a willful act contrary to the Agreement. An employee who is able to demonstrate that his absence was totally beyond his control may escape application of the provision if his absence is consistent with a continuing effort on his part to discharge his obligation to his Employer to attend at work. In addition, an employee who is able to establish that his absence is authorized under some provision of the Collective Agreement may be able to defend his absence despite the lack of specific written authorization. It is idle to contemplate the circumstances wherein an employee can justify an absence despite the lack of written authorization. Each dispute would turn on its particular facts. It is sufficient to say that an employee who is absent in excess of five days bears the onus of establishing that his absence was authorized expressly or implicitly by the Employer or is authorized by application of some provision of the Collective Agreement itself Once it is established that the absence was without authorization, however, the reasoning of the Court of Appeal in the Valley Rite case applies and it is not open to an arbitrator to substitute a lesser penalty for discharge in response to the particular circumstances. To that extent the test established in the Wm. Scott case has no application and the sole question to be addressed by an arbitrator is whether or not the absence was authorized.

 

                I am not overlooking the fact that Article 9.9 expressly requires written authority for an absence. I repeat that the absence of written authority is not sufficient to raise the application of the provision. Circumstances may arise where the refusal to grant written authority may itself constitute a breach of some express or implied provision of the Collective Agreement extending rights to the employees to be absent. In fact, in this dispute the Union raises as one of its arguments the submission that the refusal of the Employer to give written authorization is in breach of the Collective Agreement. Before turning to a consideration of that submission I want to address more specifically the question of the existence of extrinsic evidence that would narrow the application of Article 9.9.

 

III

                The Union argued that Article 9.9. should contain a further specific limitation in its application. That limitation, if effect, would provide that any employee who has been absent for a period of five days without authorization who wants to return and claim his job is entitled to do so despite the wording of Article 9.9 and subject to the procedure set out in Article 11 of the Collective Agreement dealing with the impositions of discipline. Article 11.1 provides as follows:

No employee shall be suspended (except for investigation), disciplined or discharged until he has had a fair and impartial investigation and his responsibility established.

 

It is implicit in Article 11.5 that the railway must establish just cause for any discipline imposed. The exclusion of Article 11.1 does not relieve the Railway of that burden in any sense. Nevertheless, if the interpretation of the Union is to prevail; it must contradict the clear meaning of the language used between the parties. In considering whether such an interpretive result can be achieved through arbitration it is necessary to recall the leading decision on the interpretation of collective agreements in British Columbia given by the Labour Relations Board of British Columbia in University of British Columbia and Canadian Union of Public Employees (1977) 1 C. L .R .B. R.  13. In that decision the Board said on page 16 as follows:

The proper use by an arbitrator of extrinsic evidence such as negotiation history should depend on the purposed for which that material is advanced. As we stated at the outset, a collective agreement is a bargain which must legally be contained within a written document. If the parties wish to change or add to the existing terms, they must express any such arrangements in writing as well. Accordingly, arbitrators should not take account of evidence which is designed to prove that the parties have agreed orally to a variation in their collective agreement . This is the kernel of truth expressed in the traditional exclusionary doctrine: the arbitrator has simply no jurisdiction to enforce obligations which are separated and independent from the written collective agreement reached by the parties. (We would address the specific legal doctrine of promissory estoppel.)

(underlining added)

 

                We do not take that decision as holding that evidence of oral agreements reached during bargaining are excluded as a basis for assisting an arbitrator in resolving a disputed interpretation where an oral agreement can be proven in the sense of an oral exchange between the parties from which the presumption of consensus as to a particular meaning arises. But the party seeking to rely on an oral agreement bears the burden of proving that oral agreement and the mutual intention to be inferred from that oral agreement on the balance of probabilities test. One starts with the fundamental reluctance to conclude that it is probable that the parties would have mutually agreed to a meaning contrary to the mutual intention expressed in the language selected. Where, for instance, a union asserts an agreement by the employer to provided a monetary benefit and relies on obtuse language supported by oral or even written exchanges between the parties during bargaining to colour that language, the arbitrator  must assess the probability that the parties had reached agreement on the benefit but elected to express it in language where the actual intent is vaguely or elusively stated. It is not, I emphasize, a question of credibility. Many things are said and many position papers are exchanged in the course of bargaining and the task of trying to sort out where consensus was achieved, frequently long after the events in issue, is a perilous adjudicative task. The bastion for the arbitrator, always, is the language that found its way into the collective agreement. Any extrinsic evidence adduced to assist in giving meaning to that language must, at the least, be consistent with the language and in accordance with a meaning the language could reasonably bear. It must be remembered that the U. B. C.  and C. U. P. E. case addressed as its primary issue the admissibility of extrinsic evidence and not its specific application to particular circumstances. The admonition to arbitrators in that case is that extrinsic evidence should be heard and considered as a resource in determining whether the plain meaning of the language selected accurately records the mutual intention of the parties. In considering that question an arbitrator should consider the following:

(A) Is the disputed language capable of more than one meaning, either on the plain meaning of the language used of on any restricted meaning properly ascribed to it?

(B) In the event the language is capable of more than one meaning, does the extrinsic evidence relied on address one of the possible meanings?

(C) Does the extrinsic evidence establish on a balance or probabilities a consensus in the form of a mutual intention of the parties as to the proper meaning to be ascribed to the disputed language?

 

An arbitrator must avoid intrusion into the bargain itself. The broad approach to admissibility taken in the U. B. C.  and C. U. P. E.  case has, I think, resulted in some misconception as to the use of that evidence. Extrinsic evidence is sometimes advanced as a creative resource that will commission continued sculpturing of the collective agreement to achieve expectations that were frustrated or compromised in the bargaining process itself. It is an understandable temptation but one that invokes an arbitral process that distorts the arbitral role to the ultimate detriment of the collective bargaining process. Despite the broad admissibility of extrinsic evidence it remains the duty of the parties to negotiate their agreement and record it in written form. Evidence of casual exchanges in the bargaining process are of little assistance taken in isolation and in contradiction or compromise of the language used. The principle assistance of extrinsic evidence is in guiding an arbitrator in the application of provisions of a collective agreement to circumstances that were not contemplated expressly by the parties in addressing their bargain. The provisions of a collective agreement must be extended to encompass all circumstances falling reasonably within the scope of the provisions, whether or not those circumstances were in the express contemplation of the parties at the time of making the agreement. that appears to be the issue in this dispute. Neither party seems to have squarely addressed the issue of whether article 9.9 would be limited in its application to employees who left the Railway with no continuing intention to return. There is ample evidence of the unilateral intentions for the parties with respect to the provisions but unilateral intention is of no assistance in resolving a disputed interpretation. It is clear that Mr. Carkner, on behalf of the Union, intended that the provision be restricted to what he described a “housekeeping” situations. Mr. Teichman, on behalf of the Railway, said that intention of the Railway was that employees who were absent without authorization would be deemed to have surrendered all rights to employment. The consensus achieved in the compromise of those disparate positions must be found in an examination of the language. Certainly the reservations expressed by Mr. Carkner in bargaining cannot be seen as compromising or amending the language in the extreme terms urged by the union. that interpretation presupposes a totally different provision. I have some doubts as to whether the language of the provision is capable of more than one interpretation. Even if it is, the interpretation urged by the Union is not one that the language would reasonably bear. It is not necessary to consider the third question, that is, whether the Union has established on a balance of probabilities an oral agreement outside the language selected that would assist in its interpretation but, again, I must find that the Union has failed to establish such an agreement. The most the Union has achieved is to establish a unilateral expression of intention made in the course of bargaining and upon which no consensus was achieved. In particular, I find it improbable that the parties having achieved consensus on an extremely limited provision dealing with a specific and isolated problem would record that consensus in the language that appears in the Collective Agreement. It is the Union that asserts that the parties mutually intended a confined and limited application of the provision and thus it is the Union that bears the onus of establishing the achievement of that mutual intent. The Union has failed to meet that onus by a wide margin.

 

In addition to the argument on the question of interpretation the Union further argued that the practice of the parties in the administration of the provision supports a more narrow interpretation. In the context of practice the Union further argued, as an alternative, that the administration of the provision between the parties disclosed facts that estopped the Railway from relying on a strict application of the provision. Both arguments can be addressed briefly. The evidence of practice relied on by the Union was that the Railway had, in the vast majority of cases, permitted employees who had been absent in excess of five days without authorization to return to their employment upon a proper explanation of their absence or, in the absence of a proper explanation, had submitted the circumstances to evaluation through the grievance and arbitration process and, in particular, to investigation pursuant to Article 11.1 of the Agreement. The submission of the Union falls afoul of the language of the disputed provision. Article 9.9 contemplates that the railway and the Union can agree to modify its application. Even in the absence of that language it is open to an employer to exercise its discretion in a manner favourable to an employee in response to its assessment of the circumstances. Undoubtedly the employer does respond to what might be described as hardship cases by relieving against the rigid application of the provision but it is difficult to see how that exercise of discretion can advance the argument of the Union as to the proper interpretation and application of the provision. The Railway is bound to entertain a grievance filed by an employee dismissed by operation of Article 9.9 even though it is not required to conduct an investigation under Article 11.1. The employee is entitled to an opportunity to establish that this absence was not a violation of Article 9.9. But the decision of the Railway to modify the application of the provision in response to given circumstances cannot be seen as a waiver of its rights or a practice that confirms a restricted interpretation of the provision.

 

In an extension of its submission the Union urged that even if the application of the provision was not limited by waiver or the inferences drawn from practice, the evidence of Mr. Carkner as to the discussions during the bargaining taken in conjunction with the administration of the provision by the Employer supported the finding that an agreement had been made between the Railway and Mr. Carkner within the provision itself that it would not apply to employees who sought to retrieve their employment after an unauthorized absence. In mounting that argument the Union referred to the portion of Article e9.9 that reads “except as may be mutually agreed between the appropriate officers of the Railway and the Union..."The Union argued that an agreement had been made between the Union and the appropriate officers of the Railway that the clause would not apply to employees who sought to recover their employment despite an unauthorized absence. Two points defeat that submission. The first is that Mr. Carkner agreed in his evidence that the “appropriate officer of the Railway” for matters dealing with the interpretation and application of the Collective Agreement was Mr. Teichman and Mr. Teichman denies the existence of any such agreement. The second point emerges from a consideration of the evidence previously assessed by me in connection with the interpretation argument. The existence of such an agreement would constitute an amendment to the Collective Agreement. On the basis of the decision in

 U. B. C. and C. U. P. E. one would expect such an agreement to be recorded in writing. Even, if an oral agreement in the context asserted by the Union was enforceable the least requirement would be that the oral agreement be proven in clear terms and the evidence of the Union falls far short of meeting that requirement.

 

I now turn to a consideration of the merits of the grievance. In doing so it is convenient to repeat my earlier determination that it is open to an employee who finds himself dismissed by operation of the provision to establish that his absence was authorized in the sense that he was entitled to a leave of absence under the provisions of the Collective Agreement or that his failure to obtain written authorization was without fault on his part. The Union raised such an argument and I propose to consider that merits of the dispute by  commencing with that submission.

 

IV

In advancing its submission the union referred to Article 14.1 and Article 14.11 of the agreement. those provisions read as follows:

14.1        Employees, at the discretion of the Railway, will be granted leave of absence, not to exceed three months; permission to be obtained in writing. Such leave may be extended by application in writing to the proper officer of the Railway in ample time to receive permission or return to duty at the expiration of leave of absence, or proof furnished as to the bona fide sickness preventing such return.

14.11      The arbitrary refusal of a reasonable amount of leave to employees when they can be spared, or failure to handle promptly cases involving sickness or business matters of serious importance to the employee, is an improper practice and may be handled as unjust treatment under this agreement.

 

On the basis of those two provisions the union advanced what amounts to an argument of mandatory entitlement to a leave to work does fall within the scope of Article 14. The dispute is as to whether the illness of the mother of the grievor justified his refusal to return to work on the basis that he was prevented from returning. In meeting that onus evidence was called to show that the mother suffered from a condition that required periodic hospitalization and required attendance during the periods when the mother was out of hospital. The evidence of the grievor was that it was necessary for him to be present, initially because his mother was hospitalized, and secondly because she had been released from hospital and it was necessary from him to organize her continuing care during his absence. He said that he made that arrangement by the expedient of selecting a wife and getting married with the intention of leaving his mother in the care of this wife when he returned to work. On the basis of that evidence the Union asserted that the grievor had discharged the burden of proving that the illness of his mother prevented him from returning to work and thus justified his refusal to report for work as ordered.

 

The grievor did not make any timely application for an extension of his leave. He simply informed the Employer of his decision to extend his leave. The medical documentation disclosed that her condition was longstanding. A certificate was produced showing that she had been hospitalized from February 1, 1980 to February 25, 1980. In that certificate her physician stated in part as follows.

She gets attacks quite frequently. She needs an attendant to look after her. She as admitted in this hospital from 1.2.80. to 25.2.80.

(The day portion of the first date is not totally legible and her date of admission may have been a later date in February of 1980. The date of discharge is legible.) From that certificate it is seen that the illness and need for attendance of the mother of the grievor existed as a factor approximately two years prior to the events in issue. A second medical certificate produced for the relevant period does not deal with the hospitalization of the mother but does confirm her continued need for attendance. On those facts the Union urges that the grievor was prevented from returning to work. The most the grievor has established is that the illness of his mother gave him a reason to remain off work. Certainly the facts do not disclose that he was prevented from returning to work other than in response to his determination of priorities. The very fact that his mother was obviously receiving adequate care and attendance for at least the approximate two years prior to the events in issue refutes the suggestion that her illness prevented him from returning to work.

 

                A fair interpretation of the leave of absence provisions imposes the obligation upon an employee to obtain authorization for a leave of absence in advance of the leave. A similar requirement is imposed with respect to obtaining extensions of a leave of absence. The provisions with respect to sickness are not excused from that requirement. That is not to say that an employee is prevented from explaining an absence after the fact but that explanation must encompass two requirements, an explanation for the absence itself and an explanation for the failure to obtain authorization in a timely fashion. All employees are under a continuing obligation to report for work or justify their absence from work in some manner consistent with their contractual obligations. In a case where an employee has sought an extension of his leave of absence and has been refused and ordered to report back to work there is a high onus upon him to establish that his continued absence is justified by the circumstances. The Union urged in this dispute that the grievor did in fact seek an extension of his leave of absence but that is not the case. He simply reported his intention to remain off work and forwarded covering letter after the event to report the circumstances surrounding his decision not to return. Even assuming those initiatives could be treated as an application to extend a leave of absence, the Employer refused an extension and ordered the grievor to report back. In seeking to comply with the requirement of proving that he was prevented from returning to work the grievor must go a long step further than establishing an illness on the part of his mother that required continuing care. Certainly the decision of the grievor to extend his leave of absence on the basis of the illness cannot be stretched to the point of supplanting the express authorization for a leave of absence contemplated in Article 9.9.

 

                One can find empathy with the desire of the grievor to remain at home in the circumstances. It is commendable that he assigned so high a priority to the well-being of his mother. But the language of the Collective Agreement, viewed in its best light for the grievor, requires him to establish circumstances that prevent him from returning to work. The grievor was prevented by the exercise of his own sense of priorities and that is not what is contemplated by the provision. Hard facts tempt abuses. An employee who has choices available and elects in favour of remaining absent cannot present himself as having been prevented from returning to work. It is not a balance of convenience test. In addition, some of the sympathy for the plight of the grievor was lost by his approach and attitude. Before and after receiving final notice of his intended dismissal he assumed the right to impose his decisions upon the Railway rather than obtain timely approval for a continued absence.

 

                I must conclude on the evidence that the grievor was absent in excess of five days without written authority and in circumstances where the absence of written authority is not excused. In the result the grievance must be dismissed. I can say that if the matter came before me subject to the full scope of arbitral review I may have found the circumstances appropriate for the imposition of some lesser penalty. In particular I note that the absence of the grievor from work did not effect the work routine and was without pay. Clearly his conduct was deserving of discipline but I would have been inclined to impose a lengthy suspension upon him as an appropriate response to the circumstances. I do not find it open to me to engage in such a review, however, and I find that the Railway has acted properly within the rights vested in it under Article 9.9.

 

Dated at the City of Prince George, in the Province of British Columbia, this 9th day of June A. D. 1982.

                                                                                                                                H. Allan Hope-Arbitrator