AH – 244
IN THE MATTER OF AN ARBITRATION
CANADIAN UNION OF TRANSPORTATION EMPLOYEES, LOCAL 6
GRIEVANCE RE Tinney and Bartlett
SOLE ARBITRATOR: H. Allan Hope, Q.C.
There appeared on behalf of the Company:
Mary E. Saunders
And on behalf of the Union:
A hearing in this matter was held at Prince George on June 13, 14 and 27, 1985.
In this dispute the Union alleges that the two grievors, Jeffrey Tinney and Robert Bartlett, were dismissed from the service of the Railway without proper cause. The position of the employer is that the two employees were terminated by operation of an administrative provision which is referred to generally in arbitral jurisprudence as a “deemed quit” provision. It reads as follows:
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 in excess of five (5) working days shall be considered as having left the Railway of his own accord and the Railway shall be under no further obligation to such employee.
The sequence of events is not in dispute but the circumstances surrounding the events are strongly contested. The events giving rise to the terminations commenced when the grievors were recalled from layoff and assigned to work as section men on a section gang at Lillooet. They commenced work on Tuesday, February 12, having been recalled from layoff on January 24, 1985. Later in this award I will set out the reasons for the delay between their date of recall and the date they actually commenced work.
At this stage I point out that employees recalled from the layoff list are obligated to report for work or risk loss of their employment. That circumstance is provided for in Article 10.5 of the agreement. It reads in part as follows:
10.5 Failure to respond to recall within fifteen (15) calendar days of the date an employee is notified by registered mail at his last known address shall result in severance of employment relationship unless satisfactory reason is given.
That provision does not figure directly in the dispute, but its application is part of the background which is relied on by the Union in seeking to resist the application of Article 9.9 to the circumstances. In particular, the Union said that the grievors were ordered to report to Lillooet to fill vacant positions which the employer knew would last less than 30 days. Employees cannot be compelled to return from layoff to fill vacancies of less than 30 days. Hence, said the Union, the grievors must be seen as improperly recalled. On that basis the Union submitted that the grievors could not be deemed to be absent under Article 9.9. I will deal with that submission shortly.
The Union next argued that Article 9.9 did not apply because the grievors had been granted a leave of absence for the first of the days relied on by the employer and that they had applied for a further leave of absence before expiry of the five days of absence required in order for Article 9.9 to be triggered. The essence of the Union position was that an application by an absent employee for a leave of absence, even one who is absent without authority, operates to arrest the accumulation of days under Article 9.9 until the application had been either granted or refused. I will deal with that argument later.
I turn now to the particular facts giving rise to the dispute. The grievors, as stated, commenced work on February 12, 1985, at Lillooet. They were absent without authority on two occasions between February 12 and February 22 but the events leading to their termination under Article 9.9 did not commence until Friday, February 22. They were scheduled to work that day but neither of them worked. In fact, they never reported for work again. They remained absent from work without permission until their employment was terminated on March 7, 1985. Notice of termination was given to the grievors in identical letters by D.J. Sackett, senior track maintenance engineer for the engineering department. The letters read as follows:
In accordance with Clause 9.9 of the current Maintenance of Way Collective Agreement, you have been absent from duty without written authority for a period of five (5) working days. Therefore, your services with the Railway have been terminated.
The grievors, as stated, took the position that they had been granted a leave of absence for Friday, February 22, the first day of the period calculated in their unauthorized absence. The grievors said that by coincidence a family illness had occurred which required each of them to return to their homes unexpectedly on Friday. In the case of Mr. Tinney, the illness afflicted his wife. In the case of Mr. Bartlett, it was his mother who fell ill. Both grievors said the leave was granted by the section gang assistant foreman at Lillooet, Roland Kane. Mr. Kane denied that claim. He said that neither employee sought or obtained a leave from him. He said he expected them to be at work on Friday, February 22, and when they did not show up for work he marked them as being absent without authorization.
In asserting that he had obtained a leave of absence Mr. Tinney said that he had informed Mr. Kane on the evening of Thursday, February 21 that he might not be at work Friday morning. He said that he told Mr. Kane the following morning that he was returning to his home in Prince George because his wife was sick. He said that Mr. Kane did not reply, he just nodded his head. In describing the manner in which the leave was obtained, he said, “I said I was leaving – I didn’t request it (a leave of absence). He [Mr. Kane] didn’t say anything – he just nodded”. Mr. Kane as stated, denied granting a leave. Nor did he have any recollection of being advised that Mr. Tinney’s wife was sick.
Mr. Bartlett, in describing the circumstances surrounding his obtaining of a leave, said that he told Mr. Kane on Thursday evening, being February 21, that he would not be coming to work on Friday. He said he informed Mr. Kane of that fact right after the work day ended. Mr. Kane had no recollection of that discussion, either. Mr. Bartlett said he also spoke that evening with George Korack, the assistant roadmaster for the Lillooet section. Mr. Korack recalled speaking with Mr. Bartlett but he did not agree with Mr. Bartlett as to what was said. Mr. Bartlett said he sought to obtain a railroad pass from Mr. Korack to permit him to return home to Prince George.
The recollection of Mr. Bartlett was that when he asked for a rail pass he was told by Mr. Korack, “I don’t give passes to people who are going home”. Mr. Korack recalled that when Mr. Bartlett asked for a rail pass, he turned down the request, saying that he could not give him a pass because the train schedule was such that he would have to be absent on Friday and on Monday in order to go to Prince George for the weekend and that he could not spare him for two days.
Both grievors left Lillooet on Friday and did not return. They travelled back to Prince George in a pickup truck operated by the father of Mr. Bartlett, who is also an employee of the Railway. Ignoring the conflict in the evidence, the grievors failed to obtain a leave of absence for Friday, February 22 within the meaning of the collective agreement, even on their own account of events. The general leave of absence provision reads as follows:
14.1 Employees, at the discretion of the Railway, will be granted leave of absence, not to exceed three (3) 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 bona fide sickness preventing such return.
The grievors did not seek written authorization to be absent, even on their own recollection. At best, they simply told the assistant foreman they would not be at work. Even the most liberal interpretation of Article 14.1 would not raise their evidence to the equivalent of “permission obtained in writing”. Nor would the facts amount to “written authority” to be absent from work within the meaning of Article 9.9. There was evidence that one-day leaves of absence are sometimes granted informally without written permission. But even accepting the existence of that practice and ignoring the fact that it contradicts the clear requirement of the collective agreement that authorizations be made in writing, the evidence of the grievors fails to disclose even an oral application for a leave.
Continuing to ignore the fact that informal authorization of leaves of absence contradicts the language of the collective agreement, the evidence of Mr. Kane was that he as an assistant foreman was authorized to give an employee a brief leave of absence to keep a medical appointment, or to attend to similar personal matters, but that he was not authorized to grant a full day’s leave. On the evidence it appears that Railway policy requires that leaves of absence be approved by a roadmaster or assistant roadmaster. I am satisfied on the evidence that the grievors were aware of that policy. It is difficult to accept that they thought that Mr. Kane, as an assistant section foreman, was entitled to authorize them to be absent.
It is equally difficult to accept that they left for Prince George expecting to be absent for just one day. That would require that they report back to work on Monday. I conclude from the evidence that returning to Lillooet for work Monday morning, which would require the making of a round trip to Prince George in a short time span was not a realistic possibility in the circumstances revealed in the evidence. In addition, both grievors gave evidence that their appraisal was that the rail-changing job in Lillooet was finished. The clear implication in the evidence is that the grievors had no intentions of returning when they left Lillooet that Friday morning.
Even assuming that an informal practice was developed where by some section foreman have granted leaves of absence for leaves of short duration up to one day, the evidence does not support a finding that assistant foremen have ever assumed that authority or that the practice is binding on the Railway as determinative of the interpretation of the collective agreement in the sense contemplated in such authorities as John Bertram & Sons Co. Ltd. (1967), 18 L.A.C. 362 (Weiler) @ pp. 367-68.
In their evidence both grievors conceded that they were familiar with Railway practices and yet they said repeatedly that they were confused about routine facts which could be ascertained in a simple enquiry. For example, both grievors said they did not know the name of their foreman and presumed that it was Mr. Kane even though each day began with what is called a line-up where the crew gathered to receive work assignments for the day. The uncontradicted evidence was that line-ups were attended by both the assistant foreman, Mr. Kane, and Lloyd Napoleon, the employee who was section gang foreman.
The logical official to approach as the first step in obtaining a leave of absence is the foreman of the gang upon which the employee is working. In this case that was the section foreman, Mr. Napoleon. The explanation of the grievors for having failed to approach him is, as stated, that they were confused and did not realize that Mr. Napoleon was their foreman. The implication from their evidence was that they cared little for the Lillooet job and took no steps to familiarize themselves with the supervisory hierarchy.
The failure of the grievors to enquire about routine facts surrounding their employment cannot be used as a foundation for alleging that they obtained a leave of absence. The onus on them is to establish on a balance of probabilities that they had obtained a leave of absence for Friday, February 22, if they are to rely on that leave to distinguish themselves from an application of the provision Assuming they explain away their absence for that day, they must then account for their absence for the additional nine working days they were absent without authorization between Monday, February 25 and their eventual termination on March 7.
An employee who is absent from work when he is scheduled to be present has an obligation to establish on a balance of probabilities that his absence was authorized. See: Re MacMillan Bloedel Industries Ltd., Harmac Division and Pulp, Paper and Woodworkers, Local 8 (1979), 22 L.A.C. (2d) 259 (Slutzky) and the cases cited therein. The evidence of the grievors, for the reasons given, does not support a finding that they sought and obtained leave to be absent on February 22, 1985. As for the additional days of absence between February 25 and March 7, the grievors, on their own account, had no authorization to be absent after Monday, February 25. Nevertheless, neither grievor made any attempt to advise the Railway in advance that they would be absent that day or to report their continued intention to be absent after they had failed to report.
The grievors approached the local Union on February 26 and the president of the local, Robert Dhensaw, attempted to assist them in resolving their problem. He telephoned to the employment office in Prince George and advised a clerk, Judy Kohanko, that the grievors wanted to obtain leaves of absence. Ms. Kohanko advised Mr. Dhensaw that she could not deal with leaves of absence and she recommended that Mr. Dhensaw contact her supervisor, Kenneth Young, or have the grievors apply to their roadmaster or assistant roadmaster for a leave. In the case of the grievors, that would be the roadmaster or his assistant at Lillooet.
That was a timely intervention on the part of Mr. Dhensaw. The grievors had been absent for only three days and if they had reported for work or followed up on obtaining a leave of absence, they would have avoided the application of Article 9.9. The grievors did not follow up on the initiative of Mr. Dhensaw. They went to the Railway’s employment office in Prince George but only Mr. Tinney made a written application for leave. Mr. Bartlett, who was present with Mr. Tinney in the employment office on February 26, said that he returned the following day and made out a written application. The Railway was unable to find any evidence of having received it.
Even accepting the fact that both grievors made written application for a leave, neither of them took any steps to obtain approval of the application or to enquire as to whether it had been approved. Nor did they report for work or enquire further as to their status. They simply remained absent and unaccounted for until they were dismissed. The implication is they did not return to the Union or seek its further intervention until after they had been terminated.
I note by way of aside that Mr. Dhensaw, in his discussion with Ms. Kohanko on February 26, informed her that the grievors would be making their application for leave under Article 14.11. Presumably that reference was to indicate that the reason the grievors wanted a leave was family illness, a reason the Union saw as falling within the scope of Article 14.11. That provision reads as follows:
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.
Accepting that the grievors could have met the test of being employees who could be spared, there is still no basis for concluding that the Railway was in breach of that provision. It never received any application from Mr. Bartlett. Hence, not only was the Railway uninformed as to Mr. Bartlett’s reasons for wanting a leave of absence, it was oblivious to the fact that he had applied for one. In the case of Mr. Tinney, the only information made available to the Railway was contained in his cryptic written application. The application reads as follows:
Please accept this as my application for leave of absence from February 27, 1985 to March 5, 1985 for family reasons.
That application fails to disclose any reason for the leave upon which an evaluation could be made. The only information available was that which could be derived from the term “family reasons”. Management officials conceded in their evidence that if they had been presented with an application for a leave of absence made in a timely fashion to permit the grievors to respond to illnesses in their respective families, they probably would have granted them. The indication was that management officials would want to hear and evaluate the reason before making a decision, but if the facts confirmed a family illness, they probably would have accommodated the grievors.
However, this dispute does not raise an issue of a refusal by the employer to grant a leave of absence within the meaning of Article 14.11. The dispute has to do with whether the grievors are deemed to have been absent for five days without authorization. If the evidence had been that the grievors had applied for and pursued a leave of absence for a reason contained in Article 14.11 and the Railway had arbitrarily refused, the grievors would be entitled to challenge that decision. But here the grievors took a leave of absence before they applied for it and, on their own admission, were absent without leave at the time they applied. The grievors put themselves in a vulnerable position by taking leave without authorization and then applying belatedly for a leave to cover not only future absences, but unauthorized absences which had already occurred.
Even if one accepts that the grievors thought they had been authorized to be absent on Friday and that they intended to return on Monday, a conclusion which is extremely difficult to reach on the evidence, the least finding to be made is that the grievors knew they were absent without authorization as of Monday morning, being February 25. The grievors neither reported for work nor did they secure a leave of absence or pursue one in a reasonable fashion.
The Union submitted that the Railway is to be held responsible for the fact that no trace could be found of Mr. Bartlett’s application. But the fact that the Railway did not receive the application is not the only defect in his position. Accepting that he made the application on February 27, he took no steps to determine whether the leave would be granted. The same facts apply to Mr. Tinney. He made an application but failed to pursue it after February 26. The position of both grievors was the same. They said they assumed that the leave had been authorized because they had not been informed that it had been refused. But nothing in the language of the collective agreement, the practice of the Railway in dealing with leaves of absence, or the evidence would support such a conclusion on their part. In the case of Mr. Tinney, he took no steps to determine his status even after the date he had fixed in his application, being March 5, had expired.
Returning to the events surrounding the application of Mr. Tinney, his written request was processed routinely and was considered by Domenico Celli, the track maintenance engineer for the area in which the Lillooet section is contained. The two roadmasters in Lillooet report to Mr. Celli and he was the appropriate person in the management hierarchy in Prince George to review the application. Mr. Celli said that he received the application on March 1. He had been informed earlier by the assistant roadmaster, Mr. Korack, that the two grievors were absent from work without authorization. Mr. Celli said that when he got the request from Mr. Tinney, he contacted Mr. Korack with respect to whether Mr. Korack was in favour of approving it.
Mr. Korack informed him that Mr. Tinney was still absent and had been absent without authorization in excess of five days. Mr. Korack told Mr. Celli that he felt that the Railway should deny the application and terminate Mr. Tinney under Article 9.9. Mr. Celli agreed with that recommendation and that decision was implemented routinely through Mr. Sackett. However, it took until March 7 to implement that decision and neither grievor, as stated, did anything to enquire about their status. The Union sought to make the point that the employer did not inform the grievors that their application for leave had been denied, thus permitting them to run over the five days and expose themselves to Article 9.9. But that submission begs the question. It presumes that employees who are absent without authorization can meet the requirements of Article 9.9 by the mere making of an application for a leave of absence. The language of Article 9.9 will not sustain that interpretation.
The Union said that the two grievors, when they were recalled from layoff, were compelled to accept the vacant positions in Lillooet contrary to the provisions of the agreement. The position was that the vacancies to which the grievors were recalled were known by the Railway to have a duration of less than 30 days and the grievors could not have been compelled to accept the recall notice. The facts surrounding the recall began with a telephone call from the Prince George employment office to the grievors on January 24, 1985. The two grievors were instructed that they had fifteen days in which to report to their work assignment at Lillooet. That telephone instruction was followed up with letters dated January 25, 1985.
The grievors said they went to Lillooet, travelling together, going first to Vancouver on Sunday, February 3, 1985 and then on to Lillooet by rail the following day. At Lillooet an extraordinary event occurred. The grievors, as noted, had been recalled to work on the section gang in Lillooet. The section gang was engaged in replacing seven miles of rail which had been damaged in a derailment. The work was not critical in the emergent sense but it was essential that it be done and the Railway had given its completion a priority. The work was proceeding apace when the grievors arrived.
The grievors were familiar with the procedure followed on the Railway for reporting to work. That procedure requires that employees assigned to a section gang report to either the gang foreman, the roadmaster or the assistant roadmaster. However, when the grievors arrived in Lillooet, they did not follow that procedure. For some reason which was not clear in the hearing they approached an unidentified employee in Lillooet station to enquire about their work assignment and accepted his statement that no rail replacement work was going on. They did not check that erroneous information. They said they asked the unidentified official if either of the roadmasters was available and were told they were not available. The evidence is that roadmasters are required to be constantly available through various channels of communication.
In any event, after that curious episode, the grievors returned to their homes in Prince George. Mr. Tinney’s initial recollection was that he went back to Lillooet three days later, on Thursday or Friday, after he learned that there was work available. In actual fact he returned the next week and, as previously noted, commenced work on Tuesday, February 12. He said that when he returned to Prince George after the abortive reporting incident, which would have been on February 4, he contacted the employment office in Prince George. He said contact was made the following day, which would have been February 5, and that he spoke with Diane Fremmerlid, the employee records coordinator. He said she informed him that the section crew was working and to return to Lillooet.
Mr. Bartlett repeated substantially the same account of events. His recollection was that it was February 6 when he and Mr. Tinney reported for work. He said that he phoned Ms. Fremmerlid and she informed him also that the section gang was laying steel. On that basis he made the decision to return to Lillooet. No explanation was given by either grievor for the delay between being informed by Ms. Fremmerlid that they were required in Lillooet and their arrival there five or six days later. In any event, in all of the complex evidence relating to the recall of the two grievors, there is no indication of either of them ever taking the position that they did not want to go to Lillooet or that they would prefer to remain on layoff. The Union failed to establish that the circumstances surrounding the recall are relevant to the dispute or provide any explanation for the failure of the employees to obtain authorization for their subsequent absences.
I turn now to the question of whether the language of the agreement contemplates a requirement that the Railway will act reasonably in invoking its discretion to terminate employees under Article 9.9. I am of the view that such an obligation exists. The provision contemplates that the parties can “mutually agree” that Article 9.9 will not be invoked. I am of the view that the provision falls within the ambit of the reasoning of Prof. George Adams in Re Photo Engravers and Electrotypers Ltd. and Toronto Printing Pressmen and Assistants’ Union, No. 10 (1980), 25 L.A.C. (2d) 88. In that decision he concluded that it was an implied term of the collective agreement that the employer would act reasonably in exercising its discretion under a provision of the agreement giving an apparently unfettered right to “permanently classify” employees. The significance of that decision is that it overlapped the decision of the Ontario Court of Appeal in Re Metropolitan Toronto Board of Com’rs Police and Metropolitan Toronto Police Assoc. et al. (1981), 124 D.L.R. (3d) 684, 81 C.L.L.C. para. 14,116, 33 O.R. (2d) 476.
That latter decision led some arbitrators and courts to conclude that arbitrators lacked the jurisdiction to imply a term into a collective agreement requiring the employer to act reasonably in the application of a provision of the agreement. The conclusion was that an obligation to act reasonably would have to appear in clear language. However, all that Metro Toronto Police decided, in my view, was that there is no general principle governing the interpretation of collective agreements requiring an employer to act reasonably in the exercise of rights retained by management or reserved to management in the agreement.
The decision of Prof. Adams in Toronto Printing Pressmen was overturned by the Ontario Divisional Court in an application of the Court of Appeal decision in Metro Toronto Police, but it was restored by the Ontario Court of Appeal. See: Re Council of Printing Industries of Canada and Toronto Printing Pressmen & Assistants’ Union No. 10 (1983), 149 D.L.R. (3d) 53, 42 O.R. (2d) 404, 83 C.L.L.C. para. 14,050. In that latter decision the court acknowledged its earlier decision in Metro Toronto Police, but then upheld the interpretation of Prof. Adams as being one the language would reasonably bear, including his determination that an arbitrator has jurisdiction to imply a term in a collective agreement requiring a employer to act reasonably in the exercise of rights vested in it under the agreement. In its decision the court quoted extensively from the decision of Prof. Adams, including the following two extracts:
In fact, both Courts and arbitrators have implied terms to collective bargaining agreements where a proper reading of the agreement as a whole supported the implication as a realistic appraisal of party intent…
Finally, we observe that one of Ontario’s most experienced arbitrators has outlined a general theory of reasonable contract administration and interpretation in Re Int’l Nickel of Canada Ltd. and U.S.W. Local 6500 (1977), 14 L.A.C. (2d) 13 (Shime), relying on the famous Polymer decision of Professor Laskin (as he then was)[Re oil, Chemical & Atomic Workers and Polymer Corp. Ltd (1962) s.c.r. 338, sub nom. Imbleau et al v. Laskin et al.]
The language of Article 9.9 in this agreement provides that it will not apply where the parties “mutually agree” that it will not apply. At the least that language bestows in the Union a right to seek the agreement of the employer that Article 9.9 will be waived in a particular case. To me that implies an intention that the Railway will consider the facts surrounding an unauthorized absence and will not withhold its agreement to waive the provision where the explanation negatives the implication that the employee was absent without authority by choice and that circumstances existed which prevented him from notifying the Railway in a timely fashion.
I made reference earlier to the recall provision in the agreement which also operates to automatically terminate the employment of an employee who fails to report for work within 15 days of being recalled from layoff. It contains a disclaimer similar to Article 9.9. There the words used are, “unless otherwise agreed”. The full provision reads:
10.3 Displacement rights must be exercised and work commenced on position of choice within fifteen (15) days of displacement except that employees on leave of absence at the time of displacement will exercise such rights prior to resuming duty. Unless otherwise agreed between the appropriate Office of the Railway and the Union, an employee failing to exercise displacement rights within the times stipulated will be considered as having left the services of the Railway of his own accord and the Railway shall be under no obligation to that employee.
Evidence was given that the Article 9.9, (and presumably Article 10.3), were introduced in the agreement to accommodate the fact that the Railway has a large and mobile work force with a considerable amount of seasonal work where employees come and go without keeping the Railway or the Union informed. Article 9.9 was introduced to address that problem – a problem which admittedly creates difficulties for both parties. I have concluded that there is an obligation on the employer to act reasonably, but in considering the background of the provision and the plain meaning of the words used, I conclude that the least obligation imposed on the Union in establishing that a particular application of the provision is unreasonable is to advance a reasonable explanation by the employee for the failure to obtain authorization to be absent.
Speaking hypothetically, it appears to me that the reason for the absence is irrelevant to the issue of reasonableness unless the reason also affords an explanation for the failure to obtain authorization. If, for instance, an employee was rendered incapable of seeking authorization or failed to obtain authorization due to some legitimate misunderstanding of the facts, a refusal to consider the explanation and the circumstances may be seen as unreasonable.
Having concluded that the Railway is obligated to act reasonably in the exercise of its discretion under Article 9.9, I now turn to consider whether its decision in this dispute was unreasonable. In this dispute the grievors were recalled from layoff in a routine application of the recall provisions. They answered the recall. They left work on February 22 and did not report back to work before they were terminated on March 7. Even accepting that they were authorized to be absent on February 22, a conclusion which is contrary to the evidence, they were absent without authority on their own admission from February 25. Thereafter they took no reasonable steps to obtain authority for their continuing absence. I have no basis for concluding that the Railway acted unreasonably in electing to apply Article 9.9 to the circumstances.
In making that finding it is necessary to make a clear distinction between a termination and a dismissal for cause. I have no hesitation in saying that I do not believe that the circumstances would warrant dismissal for cause. Clearly the facts would support the imposition of some discipline, but dismissal, in my view, would be excessive. An important question then is whether the circumstances amount to a dismissal for cause. The position of the Railway is that it was not a dismissal for cause. Article 9.9 is a provision which reflects an agreement between the parties that absenteeism is a serious problem and employees who are absent without authority will be deemed to have quit.
The first position of the Union was that neither grievor intended to quit and that no employee could be deemed to have quit in the absence of advance warning by the Railway that it intended to rely on Article 9.9. In that regard the Union sought to rely on a previous decision between the parties relating to the application of Article 9.9. But that prior decision being the decision in the Randawa Grievance, June 9, 1982, unreported dealt with an employee who was on an authorized leave of absence in another country. He wrote seeking an extension of his leave and the Railway, in denying it, put him on notice that it would rely on Article 9.9. Those facts are not present in this dispute either by comparison or by analogy. The Randawa decision did not hold that the Railway was obliged under the collective agreement to give notice under Article 9.9. It merely acknowledged that the Railway had put the employee on notice in response to the particular facts.
On the evidence it is clear that both grievors were aware of Article 9.9 and its application prior to the expiry of the five days. It is equally clear that they were aware that they had an obligation to be at work or to account for their absence. Their failure to contact their employer in a timely fashion or to pursue the question of whether the employer would grant them a leave of absence brought them within the clear proscription contained in Article 9.9.
The Union submission would place upon the Railway the obligation of pursuing absent employees to determine why they were absent and what their intentions were with respect to returning to work. Not only is that interpretation contrary to the language of the agreement, it is contrary to the duties and obligations of the parties as perceived in arbitral jurisprudence and as reflected in a consideration of the fundamental nature of the employer-employee relationship. The obligation of an employee is to report for work in accordance with the employee’s schedule or account for any absences. In MacMillan Bloedel, Prof. Slutsky, citing ample authority, said as follows on p. 263:
Turning first to the issue of whether an employee has a responsibility to notify the company when leaving the work-place, the union’s contention, in my view, cannot stand. There is a wealth of authority to support the proposition that this is a fundamental and basic obligation imposed upon every employee … This duty does not flow from any management “rule”, but is an inherent feature of the employment relationship itself. If an employee absents himself, from work and does not adequately satisfy this obligation, it does constitute a “neglect of duty”, giving management just and reasonable cause for taking disciplinary action …
As to the fact that the reason for the leave of absence related to family illness, there is nothing in that fact that relieves an employee of the obligation to account for absences and to obtain proper authorization before being absent. Both grievors indicated that they placed their family duties ahead of their duty to their employer. While that underlying attitude can be seen as understandable, its application by the grievors is difficult to understand. It is not a circumstance where they sought a leave of absence and had it denied. It is a circumstance where the grievors perceived, or at least asserted ex post facto, that they were entitled to leave, with or without permission, because they were responding to a family obligation. In short, the grievors appeared to feel that the reason for the leave placed them above the need to solicit and obtain proper authorization.
That approach to a leave of absence was rejected by the arbitrator in Re Steel Co. of Canada Ltd. and United Steelworkers, Local 1005 (1975), 8 L.A.C. (2d) 213 (Abbott) @ pp. 214-16. There the grievor assumed a right to be absent to meet a family problem and he merely notified the employer of his intention to be absent, the arbitrator said on p. 214:
Past arbitration cases show that the employee has an obligation to make himself available for work on a regular basis, and if he is absent he is obliged to provide notification and justification. Here, the grievor did provide notification, but failed to provide justification. There was just cause for discipline.
The same circumstance pertains in this dispute in the sense that the grievors, at best, provided notification of an intention to be absent but they did not establish justification for their absence in the sense of complying with the provisions of the collective agreement with respect to obtaining authorization for their absence or in the sense of providing some reasonable explanation for the failure to obtain proper authorization.
In any event, the decisions to which I have made reference relate to dismissals where there was an onus on the employer to establish just cause for its response. In this dispute I am of the view, as intimated, that the termination does not amount to a dismissal for cause and hence does not amount to a dismissal within the meaning of s. 93(1) of the Labour Code of British Columbia. For that reason there is no requirement to apply the test associated with a dismissal alleged to be for cause. The Union urged that the dismissal did fall within the ambit of s. 93(1) of the Code, and that the employer had failed to establish just cause to dismiss the grievors. Even accepting that the conduct of the grievors was deserving of discipline, said the Union, it was clear that dismissal was an excessive response. As stated earlier, I agree with the Union that if the termination of the grievors amounted to a dismissal within the meaning of s. 93(1), the conduct of the grievors, in my view, did not constitute just cause within the meaning applied to that test in the arbitral authorities.
However, I cannot agree that s. 93(1) applies. There is a distinction to be made between a dismissal for cause and a termination brought about by operation of the agreement. It has been held that a termination brought about by a permanent layoff instituted pursuant to the provisions of a collective agreement is not a dismissal within s. 93(1). See: Re Kwantlen College and Douglas and Kwantlen Faculty Association (1983), 12 L.A.C. (3d) 115 (Fraser). on pp. 120-21 Mr. Fraser said:
In my view, while the practical effect of Mr. Long’s termination is, indeed, the same as if he had been dismissed, the cause for management’s decision is vastly different. Dismissal is the result of some conduct of the employee tinged by or with culpability. There was no such culpable conduct here by Mr. Long leading to his termination. There is, then, no basis in logic for equating the two situations in terms of the proper considerations that management must have in making a decision that has the result of job loss.
The leading decision on the scope of s. 93 is the decision of the Labour Relations Board in Wm. Scott & Company Ltd. and Canadian Food and Allied Union, Local P-162 (1977), 1 Can. L.R.B.R. 1 (Weiler). In that decision the board made a specific distinction between dismissal for cause and dismissal by operation of the agreement for such things as “absence without leave for five days”. On p. 3 the board said:
First of all, under the standard seniority clause an employer no longer retains the unilateral right to terminate a person’s employment simply with notice or pay in lieu of notice. Employment under a collective agreement is severed only if the employee quits voluntarily, is discharged for cause, or under certain other defined conditions e.g. absence without leave for five days; lay-off without recall for one year, and so on).
Here I must conclude that the provision in question does not fall within s. 93(1) and the test of proof of just cause for dismissal does not apply. In my judgement the provision falls within a line of arbitral authority relied on by the Railway as a support for the proposition that a provision such as Article 9.9 amounts to a “deemed quit” provision.
In Re Acme Steel Co. of Canada Ltd. and United Steelworkers, Local 6572 (1976), 30 L.A.C. (2d) 393 (Weatherill), Prof. Weatherill confronted circumstances similar to those before me. That is, he found that the conduct of the grievor, had the matter been subject to review as a dismissal for cause, to be deserving of discipline but not of dismissal. As stated, I am of the same view with respect to the conduct of the grievors in this dispute. Nevertheless, he felt bound by a provision similar to Article 9.9 and he thus dismissed the grievance. on p. 395 he said:
Certainly there is a distinction to be drawn between a disciplinary discharge and a termination pursuant to a provision such as art. 12.02: see Re Int’l Nickel Co. of Canada Ltd. and U.S.W., Local 6166 (1971), 4 L.A.C. (2d) 102 (Gallagher). It may be that in some cases the circumstances which would involve the termination provisions of the collective agreement would also support the imposition of discipline. As a disciplinary matter, it would be our view that the grievor’s conduct in the instant case would subject him to the imposition of discipline although not, in the circumstances, to the penalty of discharge. This consideration does not, however, affect the application of the clear provisions of art. 12.02. We think that the onus is on the company in either case to show that the action it took was proper, but in the instant case that onus has been met.
A number of other decisions were cited for similar propositions. I was not directed to any decision in which language such as Article 9.9 was treated as invoking the just cause test. In fact, the only circumstance in which arbitrators have felt the just cause test applies in a termination under such provisions is where the provision contains no time limit and a concern arises with respect to the employer invoking it for reasons other than absenteeism. That dimension of a “deemed quit” provision was reviewed by the arbitrator in McKellar General Hospital and Services Employees ‘ Union, Local 268 (1981), 30 L.A.C. 229 (Pritchard). The provision in that dispute appears on p. 232. The relevant part reads as follows:
14.03 Termination of Service. Continuity of service shall be considered broken and employment terminated when:
(b) an employee is absent from work without providing a reason satisfactory to the Corporation or without the consent of the Corporation;
The arbitrator applied what I perceived to be a good faith test in concluding that the employer could not invoke such a clause as a basis for terminating an employee where the reason for the termination was unrelated to absenteeism, being the subject matter of the provision. In that case the arbitrator concluded that the employer possessed a discretion to invoke the absenteeism provision in circumstances similar to those before me in that the grievor had been absent without authority for a period of time in order to participate in an unlawful strike. The arbitrator concluded the grievor had been terminated because of her participation in the strike and not because of her unauthorized absence. On p. 238 he said:
Based on the evidence as a whole I have no hesitation at all in characterizing the employer’s decision as a discharge for participating in the illegal strike as opposed to a termination for absence from work. The evidence points overwhelmingly in that direction.
On the basis of that finding he concluded that the dismissal of the grievor was for cause other than absenteeism and hence it was subject to review under the just cause provisions of the collective agreement and the governing legislation. However, on pp. 233-38 the arbitrator indicated he had reviewed a number of “deemed quit” cases and he acknowledged that provisions containing express time limitations, such as this one, fell within the “deemed quit” concept. On p. 238 he said:
As was stated above, almost all termination clauses contain a built in limitation on their exercise in the form of a minimum period of absence required to trigger the clause. This minimum period ensures that the clause can only be used to respond to substantial absences and the role of an implied limitation such as I have found is accordingly reduced to a secondary status.
Here the provision contains time limits governing its application to defined circumstances. That does not mean to say that the provision is impervious to attack on the grounds of bad faith or, in restricted circumstances, in response to apparent unreasonableness on the part of the employer in the exercise of its discretion. But here the grievors were absent without authorization for more than five days at the time of their dismissal on March 7, 1985, no matter how the facts are viewed. There is no basis for concluding that the belated application for a leave of absence in this dispute took the circumstances outside the scope of the provision.
That issue was addressed in Re International Nickel CO. of Canada Ltd. and United Steelworkers, Local 6166 (1972), 4 L.A.C. (2d) 103 (Gallagher). On p. 107 the arbitrator said:
It is true that the grievor sent a telegram to, and wrote to, the employer advising of his not returning to work by the prescribed time. However, even if the board treats these communications as a request to be excused (which the board is quite prepared to do) this does not affect the situation. The power, or authority, to excuse a person from reporting to work at a designated time is one which clearly belongs to the employer, and is a discretionary power, or authority, to be exercised by the employer as it may see fit under all the existing circumstances. The employee is not entitled to assume that because he had made a request to be excused, and because there is silence on the part of the employer, that this amounts to a granting of such request.
The interpretation urged by the Union whereby an application for a leave of absence would operate as a stay on the application of Article 9.9 would require me to amend the plain language of the agreement. The following comments on p. 105 in International Nickel are apropos the submission in this dispute:
It may be self-evident, but it is nonetheless important law, to say that an arbitration board does not have the jurisdiction or authority to make a collective agreement, or any of the terms of a collective agreement, for the parties.
In the result I find that the grievors had been absent without any form of authorization for a period in excess of five days prior to their termination. No case was made by the Union to sustain a conclusion that the exercise of discretion by the Railway was unreasonable. In the result, the grievances are dismissed.
DATED at the City of Prince George, in the Province of British Columbia, this 19th day of July, A.D., 1985.
(signed) H. ALLAN HOPE, Q.C.