SHP 477
IN the MATTER OF AN ARBITRATION
BETWEEN
CANADIAN PACIFIC RAILWAY – MECHANICAL SERVICES
(the "Company")
AND
CAW-CANADA – LOCAL 101
(the "Union")
re: DISMISSAL OF CARMAN J. BRAND
Sole Arbitrator: Michel G. Picher
Appearing For The Union:
Brian McDonagh – National Representative
Amado Rosales – Vice-President, Prairie Region
Gary Stettner – President Lodge
Ron Cochrane –
Joel Brand – Grievor
Appearing For The Company:
D. E. Guerin – Labour Relations Officer, Calgary
D. T. Cooke – Manager, Labour Relations, Calgary
A hearing in this matter was held in Winnipeg on January 9, 1999.
AWARD
This arbitration concerns the discharge of Moose Jaw Carman Joel Brand for his absence from work due to incarceration following upon a criminal conviction. The Dispute and Joint Statement of Issue, filed at the hearing, read as follows:
DISPUTE:
Dismissal of Carman J.P. Brand, Moose Jaw Mechanical Facility.
JOINT STATEMENT OF FACT:
On November 3, 1995 Carman J.P. Brand was dismissed from service for:
"… failing to be available for duty due to your incarceration as a result of your criminal convictions of breach of probation and of threatening bodily harm, Moose Jaw, Saskatchewan."
JOINT STATEMENT OF ISSUE:
It is the position of the Union that the Company has acted in an arbitrary and excessive manner with respect to the dismissal of J.P. Brand.
Therefore, the Union requests that Mr. Brand be reinstated forthwith without loss of seniority, with full redress for all lost wages, benefits and losses incurred from the time of his release from prison including, but not limited to interest on any monies owing.
The Company denies the Union’s contentions and claim.
The facts relating to this grievance are not in substantial dispute. Mr. Brand, an employee of some 14-1/2 years at the time of his termination, experienced a rancorous divorce and custody dispute with his wife in the early 1990s.
The record discloses that the grievor was convicted of two counts of assault against his wife and son, respectively. Upon conviction for those offences he was sentenced to one year’s probation, the terms of which prohibited his contacting his children. Unfortunately, within the probation period, apparently on a number of occasions culminating in an incident on August 26, 1995 Mr. Brand flagrantly violated the conditions of his probation. It is not disputed that he uttered repeated threats of violence and death to his ex-wife, his two sons and his ex-wife’s male companion. On August 26, 1995 he forcibly entered his ex-wife’s home while in a state of intoxication, uttering further threats and engaging in considerable property damage. On that occasion he was arrested and commenced a long period of incarceration. He subsequently pleaded guilty and was convicted of nine counts of breaches of probation and two counts of threatening bodily harm. In light of his prior record of domestic violence and apparently uncontrolled alcoholism he was sentenced to thirty months in a federal penitentiary.
In the period immediately following his arrest the Company granted the grievor a leave of absence, coupled with his outstanding vacation time, a period which extended to September 22, 1995. Thereafter, however, the Company declined to extend the grievor’s leave of absence any further, and so notified him in a letter dated September 22, 1995 from Facility Manager Rod Jourdain. That letter indicated that his leave of absence would be terminated after September 30, 1995. Following the grievor’s sentencing, which occurred on October 5, 1995 the Company conducted a formal investigation into his unauthorized absence from work, attending for that purpose at the Regina Correctional Institute. On November 3, 1995 Mr. Brand was notified in writing that his employment was terminated by reason of his being unavailable for duty as a result of his incarceration. Thereafter the Union both grieved his dismissal and requested that the Company extend his leave of absence to cover his period of incarceration. It now appears that although there was some hope that the grievor’s period of incarceration might be reduced for early parole, in fact he was denied parole and ultimately served the full thirty months of his sentence in custody. The Company ultimately declined to reconsider its decision to dismiss Mr. Brand, or its decision to decline his request for a leave of absence.
Following his release from custody, in April of 1998 Mr. Brand requested to be reinstated into his employment, a request which was denied by the Company. In these proceedings the Union asserts a two-fold position: firstly that Mr. Brand was improperly denied a leave of absence under rule 15 of the collective agreement and, secondly, that the Company did not have just cause to terminate his employment. The Company’s representatives object to the raising of rule 15, a matter which they submit is not identified within the Joint Statement of Issue, and is therefore beyond the Arbitrator’s jurisdiction. In the circumstances I do not consider it necessary to resolve that dispute. In my view, even if the issue of rule 15 can properly be raised, the objective circumstances of the grievor’s incarceration were sufficient for the Company to exercise its discretion under rule 15.1 to deny the request for leave. Assuming, without finding, that the Company’s decision in that regard is arbitrable (a matter upon which the Arbitrator has some substantial doubt) I would not be inclined to find that the Company’s decision was arbitrary within the meaning of rule 15.3.
The collective agreement provisions in question read as follows:
15.1 When the requirements of the service will permit, employees will be granted leave of absence, not to exceed 90 days, with the privilege of renewal by consent of the Management and the duly authorized Local Representative of the Union.
15.2 Any employee engaging in other employment while on leave, except with consent of Management and the duly authorized Local Representative of the Union, shall be considered out of the service.
15.3 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.
In the instant case the evidence discloses quite clearly that the Company fully turned its mind to the grievor’s circumstances and gave due consideration to the Union’s request. Faced with an employee charged with extremely serious criminal misconduct, and a period of incarceration well in excess of two years, the Company cannot, in my view, be faulted for its decision to decline the grievor’s request for a leave of absence.
The real issue to be determined in this case is whether, on all of the material before the Arbitrator, there is a compelling basis to consider a reduction of the disciplinary penalty of discharge. The principles to apply in respect of an issue of that kind were previously reviewed in CROA 2714, a decision involving the instant company and the Brotherhood of Maintenance of Way Employees. In that award the following appears:
This Office has long recognized that incarceration for a criminal offence is, of itself, not necessarily grounds for the termination of an employee’s service, where there are substantial mitigating factors of significance. In CROA 1934 the general principles to be applied were described as follows:
The issue in the instant case is whether the Company was entitled to discipline Mr. Miller because of his unavailability for work during his incarceration. I am satisfied that it was. The issue then becomes whether, in light of all the factors to be considered, a measure of discipline short of discharge is appropriate. In assessing that question a number of factors must be weighed. Among them are the impact, if any, on the employer's operations and interests arising out of the grievor's criminal conviction, as well as the grievor's length and quality of service. The principles that apply were expressed in the following terms in CROA 1645, which also involved the discharge of an employee convicted and incarcerated in relation to a fatality:
As is implicit from the cases, there can be no automatic presumption that conviction for a serious criminal offense, including subsequent incarceration, are necessarily inimicable to the continuation of an employment relationship. In this, as in any matter of discipline, each case must be assessed on its own merits, with close regard to a number of factors, including the nature and circumstances of the offense, efforts at rehabilitation, the nature of the work performed by the employee, the length of an employee's service and the quality of his or her disciplinary record and prior criminal record, if any. Obviously, careful consideration must be given to the reinstatement of any employee who is absent without leave due to incarceration for a serious criminal offense, having particular regard to the need of the Company to provide, and appear to provide, a public service consistent with the highest standards of safety and integrity in its employees. Those considerations should not be compromised or placed at risk. On the other hand, great care should be taken not to overreact and unduly sever the career of an employee of long-standing and good service when the evidence establishes, on the balance of probabilities, that there is no real jeopardy to the Company's legitimate interests.
A review of the cases cited above discloses that arbitrators require that an employee seeking the benefit of a tribunal’s discretion to order their reinstatement into employment should, at a minimum, be forthcoming with a clear account of the circumstances leading to their incarceration, their prior criminal record, if any, as well as any evidence which might be persuasive with respect to their rehabilitation. It is also noteworthy that in some cases long service has been considered an important element in the balancing of equities, as for example, in CROA 1645 and CROA 1934 where both grievors had twenty-one years’ good service with the employer.
As is evident from the authorities, each case of this kind must be determined upon its particular merits. When regard is had to the whole of the record before the Arbitrator there are mitigating factors which do come to bear in favour of Mr. Brand at this time. As noted above, he is an employee of fourteen years’ service. It is not disputed that his disciplinary record is positive, involving only one prior notation. Most significantly, it is clear to the Arbitrator that the grievor’s behavioural problems in the past have, as noted by the trial judge at the time of his sentencing, resulted largely from his then uncontrolled alcoholism. The evidence before me at this time is that the grievor has not consumed alcohol since the day he was first arrested in August of 1995, some three and one-half years ago. Significantly, he successfully completed the twelve step program of Alcoholics Anonymous while serving his sentence in the Saskatchewan Penitentiary, as documented by Mr. Larry Marcotte, the institution’s alcohol and drug counsellor. The evidence further indicates that while in custody the grievor completed his grade twelve high school equivalency diploma, successfully participated in a cognitive skills training program and completed a thirty hour drug and alcohol education program. He has achieved, over the last three years, an impressive degree of rehabilitation, making substantial strides in turning his life around. Letters of reference in respect of his general good conduct and post-incarceration employment are positive, and there is every reason to believe that Mr. Brand has made and continues to make substantial strides in the overall improvement of his personal life.
Without diminishing the severity of the offences of which he was convicted, and the understandable concerns of the employer with respect to the events leading to the grievor’s incarceration, those events do nevertheless remain unrelated to his work performance and his general relations with his supervisors and fellow employees. In all of the circumstances I am satisfied that the grievor can be returned to work, on conditions fashioned to protect the Company’s legitimate interests.
For the foregoing reasons the grievance is allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, without compensation for wages and benefits lost and without loss of seniority. The grievor’s reinstatement shall be conditional upon his accepting to be subject to random drug and alcohol testing, to be administered non-abusively, for a period of not less than two years following his reinstatement. As a further condition of his reinstatement the grievor shall be required to make such periodic reports to an officer of the EFAP program, the frequency of such reports to be determined by the officer, for the same period, for the purposes of reviewing his personal circumstances, in particular with respect to abstinence from alcohol. Implicitly, as a condition of his reinstatement the grievor is to abstain from the consumption of alcohol or prohibited narcotics for the period of the conditions herein established.
The Arbitrator retains jurisdiction in the event of any dispute between the parties respecting the interpretation or implementation of this award.
Dated at Toronto, January 18, 1999
(signed) MICHEL G. PICHER
ARBITRATOR