SHP - 391
IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC LIMITED
NATIONAL AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS UNION OF CANADA LOCAL 101
GRIEVANCE RE DISCHARGE OF ERIC W. RILEY
SOLE ARBITRATOR:Michel G. Picher
APPEARING FOR THE UNION:
B. R. McDonagh – President, Local 101
Eric W. Riley – Grievor
APPEARING FOR THE COMPANY:
K. E. Webb – Manager, Labour Relations - MSO Vancouver
A. Y. de Montigny – Labour Relations Officer, Montreal
A hearing in this matter was held in Montreal on April 11, 1994.
This is the arbitration of a grievance against discharge. By reason of his unavailability for work because of his incarceration for a criminal offence, Carman E.W. Riley was discharged from his position with the Company at Coquitlan, B.C. on April 3, 1992. The Joint Statement of Issue filed by the parties outlines the nature of the dispute, and reads as follows:
JOINT STATEMENT OF FACTS:
According to the Company form 104, on April 3, 1992, Carman E.W. Riley was dismissed for: "… being unavailable for service without proper leave, rendering yourself unable to fulfill and properly discharge your employment obligations and willfully concealing the true reason for your absence due to your incarceration …
JOINT STATEMENT OF ISSUE:
It is the position of the Union that:
Mr. Riley did not willfully conceal the true reason for his absence.
Mr. Riley wrote the Company to advise the reason for his absence when his state of mind was such that he could realize a proper perspective on the matter.
The Company has acted in an arbitrary, subjective and excessive manner with respect to the dismissal of Carman E.W. Riley.
Therefore, Carman E.W. Riley should be reinstated to employment forthwith, without loss of seniority, without loss of benefits and reimbursed for all time lost as provided for in Collective Agreement 52.1.
The Company denies claim.
The grievor, Mr. Eric W. Riley, had been employed by the Company for 13 years, and was working as a carman at Coquitlam when he was discharged. The record discloses that the grievor had an extended period of absence from work in 1991. He had three separate occasions of absence between January 2, 1991 and August 28, 1991. From January to August of 1991, he was absent for three separate injuries, one of which was work related. The record discloses that on August 29, 1991 Mr. Riley was arrested and charged with two counts of aggravated assault and spousal assault. He remained incarcerated from that date until August 12, 1992.
The position advanced by the Company at the hearing is that Mr. Riley attempted to conceal from his employer the fact that he was unable to attend at work because of his incarceration. It cites, for example, a letter sent by Mr. Riley to the Company through his parents, on January 4, 1992. In that letter, Mr. Riley indicated that his physical injuries continued to render him unfit for service. In the same letter, he indicated that he was recovering from alcoholism and a marijuana dependency. The Company submits that an x-ray report, which accompanied the letter, dated October 2, 1991, revealed that the x-rays had been taken at the Remand Centre, a detention facility. The Company submits that this was the first indication it had that in fact the grievor’s absence from work was occasioned by incarceration, rather than by his injuries.
Subsequently, a disciplinary investigation was conducted at the Fraser Regional Correctional Centre on March 10, 1992. The investigation confirmed that the grievor had pleaded guilty to two charges of aggravated assault, and was sentenced to a term of 18 months, expecting to be eligible for parole in August of 1992. The position advanced by the grievor, in part through his lawyer, at the disciplinary investigation was that he was still physically unable to return to work, by reason of the continuing effect of injuries., including broken ribs, which he had sustained on August 29, 1991. The record also discloses that shortly before the investigation, on February 24, 1992 the Company received a written request from Mr. Riley for a six-month leave of absence. That letter disclosed his incarceration as well as his efforts to recover from drug dependence. As noted above, the Company decided to discharge the grievor, as indicated in its communication,of April 3, 1992. The form 104 which was addressed to Mr. Riley reads, in part, as follows:
Please be informed that you are DISMISSED for being unavailable for service without proper leave, rendering yourself unable to fulfill and properly discharge your employment obligations, and for willfully concealing the true reason for your absence due to your incarceration, Coquitlam, B.C.
The Company’s position is understandable. Although Mr. Riley’s employment has extended over a substantial number of years, his disciplinary record as well as his attendance record have not been impressive. His inability to attend at work because of incarceration gave the employer prima facie grounds to terminate his employment for his obvious inability to fulfill his side of the employment obligation. In addition, for a time at least, he attempted to conceal from the Company the fact that his inability to attend at work was, apart from his injuries, due to his being held within a correctional institution following his conviction for aggravated assault against two persons, including his common law spouse. In the arbitrator’s view, the Company had every reason to take the most serious of disciplinary actions in the circumstances. If the factors of incarceration and attempted deception were the only ones in the record, there would be little reason for the arbitrator to consider this matter any further.
There is, however, more to consider. By his own acknowledgment, at the time of the events leading to his incarceration, Mr. Riley was an alcoholic and was also drug dependent. The evidence before the arbitrator, supported by substantial documentation, reveals that while in prison Mr. Riley actively sought assistance for his alcohol and drug problems, and began what has been a sustained and successful course of rehabilitation. The evidence discloses that when he was first incarcerated he became involved in the Alcoholics Anonymous program conducted within the Surrey Pre-Trial Service Centre. He subsequently participated in the Substance Abuse Relapse Prevention Program at the Fraser Correctional Centre and, following his release, became involved with the alcohol drug and anger control program administered by the Ministry of Health of British Columbia through the Surrey Clinic. The evidence before the arbitrator establishes, beyond controversy, that, at the time of the hearing, Mr. Riley had remained substance-free for some two and a half years. He remains active as a regular participant in the meetings of Alcoholics Anonymous and has, by all outward indications, dramatically altered his life-style in a most positive way. Among the supporting documentation is a letter of endorsement from his common law spouse, one of the victims of his assault, confirming the strides he has made.
In the arbitrator’s view, the grievor’s record of rehabilitation is impressive. It is, as prior arbitration awards have confirmed, reflective of the rehabilitative progress which can, in appropriate circumstances, be a factor having a bearing on the exercise of an arbitrator’s discretion to vary a disciplinary penalty.
The material before the arbitrator reflects a further factor of some mitigating value. The submission of the grievor, which stands unrebutted by the Company, is that in fact his conviction and incarceration was a matter of general knowledge in the workplace, and was not unknown to his supervisors. Specifically, he states that at some point following his incarceration, and prior to the events leading to his disciplinary investigation, he verbally advised staff coordinator Jerry Ball that he was serving a prison term. He states that Mr. Ball confirmed that he already knew this, but asked why Mr. Riley had not previously made this known to the Company. The record discloses that at the time of the grievor’s eventual disciplinary investigation, Mr. Ball had left his position. The lack of any knowledge of his whereabouts was asserted, apparently quite fairly, by his successor.
As is apparent, the foregoing disclosure does not alter the fact that Mr. Riley did not discharge the duty of disclosure which he owed to his employer in a timely fashion. It is clear, by his own admission that he did attempt to conceal his whereabouts, at least for some period of time. He relates that he did so out of shame, and in hopes that his sentence would be shortened so as to allow his return to work in the normal course after the healing of his rib injuries.
Upon a review of the whole of the material before me, I am satisfied that this is an appropriate case for a substitution of penalty, subject to conditions fashioned to protect the interests of the Company. My opinion that reinstatement is appropriate is not based so much on the disclosure that there was some communication of the grievor’s incarceration to Mr. Ball (a factor which the grievor did not raise during his disciplinary investigation) as the conclusion based on the whole of the evidence, that his prior attendance problems and the events leading to his incarceration were inextricably linked to his previous life-style, influenced as it was by his alcohol and drug dependence. In light of his very positive recovery in respect of those problems, there are substantial grounds upon which to base the expectation that Mr. Riley can return to productive service with his prior employer of nearly 14 years.
For the foregoing reasons the grievance is allowed, in part. The arbitrator directs that Mr. Riley be reinstated forthwith into his employment, without compensation or benefits, and without loss of seniority. The grievor’s reinstatement shall be conditioned upon his abstaining from the consumption of alcohol or prohibited drugs and remaining active in the support program of Alcoholics Anonymous. He shall provide to the Company, for a period of not less than two years from the date of his reinstatement, written documentation, on a quarterly basis, from a responsible officer of Alcoholics Anonymous, or any similar support group in which he may be involved, confirming his ongoing participation. I retain jurisdiction in the event of any dispute between the parties having regard to the interpretation or implementation of this award.
DATED at Toronto this 19th day of April, 1994.
(signed) MICHEL G. PICHER