AH – 385

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC EXPRESS & TRANSPORT

(the “Company”)

AND

TRANSPORTATION COMMUNICATIONS UNION

(the “Union”)

GRIEVANCE RE CHRIS BACHEWICH

SOLE ARBITRATOR:                Michel G. Picher

There appeared on behalf of the Company:

M. D. Failes                              - Counsel, Toronto

B. F. Weinert                             - Director, Labour Relations, Toronto

J. Knelsen                                 - Operations Supervisor, Winnipeg

And on behalf of the Union:

D. Ellickson                               - Counsel

D. Graham                                - Division Vice-President, Regina

C. Bachewich                            - Grievor

A hearing in this matter was held in Montreal on Thursday, 11 August 1994.

AWARD

The grievor, Chris Bachewich, has been employed by the Company for some eight years as a warehouseman at its Winnipeg Terminal. On January 22, 1994 Mr. Bachewich commenced a vacation. Sometime later, estimated by the Company to be February 3, 1994, Mr. Bachewich’s common law spouse came to the terminal with a note on his behalf requesting a leave of absence. She was advised that the request for the leave of absence would only be considered upon exhaustion of his annual vacation. A registered letter to the same effect was sent to the grievor on that day, also advising him to contact the Company and to be available for work.

On February 10, which the Company states was the grievor’s final day of vacation, he contacted his supervisor, Mr. J. Knelsen, by a collect telephone call from Kamloops, B.C. It is common ground that Mr. Bachewich was then incarcerated pursuant to a conviction for trafficking in narcotics, in respect of which he was committed to prison for a period of eight months. Mr. Bachewich did not advise Mr. Knelsen of his whereabouts, and upon being told that it was not sufficient to advance “personal reasons” for a leave of absence, he first indicated that he needed the time off for educational purposes, and secondly that he was suffering stress.

Thereafter the Company heard nothing further from Mr. Bachewich, and on February 15, 1994 sent him a letter advising him that he must report for work within seven days, failing which he would be terminated. When the letter, sent by registered mail, went uncollected the grievor’s employment was duly terminated. It was further confirmed to the grievor by telephone when he called the Company on March 24, 1994 and again, on May 10, 1994, after his release from prison, when he called the Company indicating his availability to return to work.

At the hearing the Company advanced as the grounds for the grievor’s termination his failure to be available for work and his failure to communicate honestly with the Company as to the reasons for his absence, his location and the likely date of his return. Although the Company has obvious concerns for the criminal conduct in respect of which the grievor was convicted, as an employer in the transportation industry, it did not advance that as a reason for his termination.

At the hearing Mr. Bachewich stated that he was under the impression, following his telephone conversation with Mr. Knelsen, that his request for a personal leave of absence had been granted. The Arbitrator has much difficulty grasping the basis for that belief. I am well satisfied, beyond the balance of probabilities, that Mr. Bachewich was clearly advised by Mr. Knelsen that he must have reasonable grounds for his request for a leave of absence, a requirement which is reflected in the following provision of the collective agreement:

20.1        Any employee with three or more years’ service shall, on reasonable grounds and when requirements of service permit, be granted up to three months’ leave of absence, and shall retain seniority. Subject to the consent of the Union and the Company, further extension of leave may be granted.

I am satisfied from the language of article 20.1, that it is implicit that there must be at least a discussion between the employer and the employee requesting a leave of absence which will allow the employer to assess whether there are reasonable grounds underlying the employee’s wish for a period of time off. In the case at hand the grounds for Mr. Bachewich’s request were never in fact communicated to Mr. Knelsen. To the contrary, two separate and transparently false grounds were advanced by Mr. Bachewich during the course of their telephone conversation. Most significantly, I am satisfied that there was no affirmative response from Mr. Knelsen, or from any other Company representative, which could reasonably have left the grievor the impression that his leave of absence had been granted. Regrettably, it is difficult for the Arbitrator to escape the conclusion that certain of the statements made by the grievor at the hearing are no less misleading in their intent than those which he made on the telephone to his supervisor.

On behalf of the grievor it was pleaded by the Union that the Company violated the terms of the collective agreement, as notice of the intention to remove Mr. Bachewich’s name from the seniority list was not copied to the local protective chairman and executive vice-president of the Union. In the Arbitrator’s view this objection cannot be sustained. It is true that article 7.3.10 requires that notice of an intention to remove an employee from the seniority list must be copied to the Union. However, that provision relates to laid off employees. It is not disputed that the collective agreement contains no specific provision for dealing with employees who are absent without leave, and that for some time, with the Union’s acquiescence, the Company has applied a rule roughly parallel to the provisions of article 7.3.10, although there is nothing before the Arbitrator to confirm any understanding or requirement to copy the Union in respect of notices which issue to employees who are absent without leave. On this basis, I cannot sustain the procedural objection raised by the Union.

The evidence before the Arbitrator discloses the case of an employee who cannot be described as being of long service, with a relatively extensive criminal record, including at least three prior convictions involving trafficking in a narcotic and the growing of marijuana. The most recent of those, being the charge of cultivating a narcotic, was registered in December of 1991. While the nature of the grievor’s criminal activities is not directly germane to the severance of his employment relationship, the suggestion of criminal recidivism reflected in his record would tend to support the Company’s concerns for his overall reliability and his likelihood of his ongoing availability for employment in the future. Those concerns would not, moreover, be alleviated by the lies which Mr. Bachewich fabricated to conceal from his employer the real purpose for his request for a leave of absence.

On the whole the Arbitrator is satisfied that the Company was justified in its decision to terminate the services of Mr. Bachewich. It was also entitled, for reasons related in CROA 1830, to proceed to terminate his employment administratively, without conducting a disciplinary investigation, in light of the grievor’s obvious unavailability. Indeed, the Arbitrator is satisfied that the facts in the case at hand closely parallel those found in CROA 1830, which concerned the termination of another incarcerated employee who failed to disclose his circumstances or whereabouts to the employer.

For all of the foregoing reasons the grievance must be dismissed.

Dated at Montreal, this 11th day of August, 1994

(signed) MICHEL G. PICHER

ARBITRATOR