IN THE MATTER OF AN ARBITRATION

AWARD

This arbitration concerns the termination of Carman L. from his employment at St. Luc Yard, Montreal. The grievor was terminated by reason of his unavailability for work following his incarceration upon conviction of a serious morals offence.

The Joint Statement of Fact and Issue, filed at the hearing, reads as follows:

LITIGE :

Refus d'accorder un congé sans solde et le congédiement du wagonnier "L".

DÉCLARATIONS CONJOINTE DES FAITS :

Le 27 janvier 2005, l'employé "L" a demandé un congé sans solde suite à son incarcération à la prison de Bordeaux. La compagnie a refusé la demande, et le 4 avril le plaignant a été congédié.

DÉCLARATION CONJOINTE DES EXPOSÉS :

Le Syndicat prétend qu'en refusant la demande de congé, la compagnie a violé les articles 15.1, 15.3 et 16.1 de la convention collective. Le syndicat prétend également que le congédiement était sans cause juste. Le syndicat demande le retour au travail de l'employé et un redressement complet.

La compagnie rejette les prétentions du syndicat.

The record discloses that on June 2, 2004, grievor was convicted of a serious morals charge under the Criminal Code of Canada. The conviction followed a guilty plea, after which, on January 25, 2005, "L" was sentenced to twenty months of incarceration. He in fact served thirteen months before being released on parole, subject to certain conditions imposed at the time of sentencing.

It does not appear disputed that the grievor did not expect to be placed in closed custody for any extended period of time, as he had no prior criminal record. The evidence indicates that upon being immediately placed under permanent detention "L" requested that his brother inform the Company that he would be absent for an extended period, and would need a leave of absence. In fact that request was forwarded by his brother to his local Union representative, Mr. Gérard Émond, who made the request of the Company's Employee Resource Officer, Mr. Gilles St. Pierre, on or about January 26, 2005. The request made by Mr. Émond, forwarded in an email on January 26, 2005, was for a twenty month leave of absence for personal reasons. When asked what was the nature of the reasons Mr. Émond indicated that "L" was incarcerated, but he did not know the nature of the charge of which he had been convicted. It appears that on January 28, 2005, the Company obtained a copy of the court transcript from the grievor's sentencing hearing. On the same day it advised the Union that it could not agree with the request for a leave of absence for "L".

On March 11, 2005, the Company conducted a disciplinary investigation within the confines of the correctional facility where the grievor was imprisoned. During that investigation the grievor explained that he was unable to contact the Company himself because he could only make collect calls from his place of detention, and he therefore needed the assistance of his brother and his Union representative to make his request for a leave of absence. He also admitted his guilty plea to the morals charge against him and indicated that he expected to be available to return to work in January or February of 2006. In fact "L" was released from the correctional facility on March 5, 2006. Since that time he has resided in a shelter for homeless persons in Montreal and has been entirely dependent on welfare for his income.

Following the investigation, on April 4, 2005, the Company wrote to the grievor's Union representative advising that the grievor's employment was terminated. That communication reads, in part, as follows:

En conformité avec la provision de la règle 28.4 de la convention collective 101, je vous écrit pour vous aviser du congédiement du wagonnier [L] à Montréal pour :

"défaut de rencontrer vos obligations contractuelles, soit d'être disponible pour le service depuis le 31 janvier 2005 suite à votre incarcération à la prison … pour votre condamnation criminelle le 25 janvier 2005, …, Québec."

The Union submits that the grievor's dismissal was without just cause and, more particularly, that he should have been allowed the leave of absence which he requested through his Union. It asserts that the Company's denial of a leave of absence violated rules 15.1, 15.3 and 16.1 of the collective agreement. Those provisions read as follows:

RULE 15 – LEAVE OF ABSENCE

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.

…

15.3 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.

RULE 16 – ABSENCE FROM WORK

16.1 In case an employee is unavoidably kept from work he will not be discriminated against. An employee detained from work on account of sickness or for any other good cause must, if possible, advise the Foreman prior to t4 commencement of his/her shift.

Should an employee be required to leave work prior to the end of his/her shift, permission shall not be unreasonably denied.

As a first head of argument, the Union submits that the Company has no discretion with respect to the granting of a leave of absence within the terms of rule 15.1, to the extent that it does not demonstrate that the absence of the employee will interfere with the requirements of the service being met. Its representative submits that in the case at hand there were laid off employees at Montreal who could have been recalled on a temporary basis to replace the grievor.

The Union submits that three considerations arise in examining a request for a leave of longer than 90 days under rule 15.3. Firstly, that the refusal must not be arbitrary, secondly, that the request is for a reasonable amount of leave and thirdly, that the employee can be spared for the duration of the leave which is requested.

The Union submits that those conditions were met in the case at hand, and that the grievor should not have been denied leave. Its representative argues that the denial of leave to the grievor was arbitrary in all of the circumstances. He stresses that the Company did not, in its notice of discharge, ground the termination of "L" on the basis of the nature of the crime which he committed or for conduct unbecoming an employee. On the contrary, he emphasizes, the Company's sole reason for terminating the services of the grievor, as stated in his notice of termination, was his failure to carry out his employment contract, as he became unavailable for work by reason of his incarceration. That, the Union insists, could have been entirely avoided but for what it characterizes as the arbitrary refusal of a leave of absence to the grievor by the Company's decision communicated to the Union on January 28, 2006.

The Company's representative submits that the employer does have a discretion under the provisions of rule 15 of the collective agreement, and that in the case at hand the decision which was made was not arbitrary. He stresses that although the grievor has thirty years' service, he has an extremely negative disciplinary record. That record indicates that on two prior occasions "L" was terminated by the Company, albeit he was reinstated on both occasions by agreement with the Union. Perhaps most importantly, he notes that the attendance record of "L" over the years was consistently negative, which caused much of the discipline incurred. He argues that faced with the grievor's inability to attend at work for a period of as much as twenty months, the Company considered that he had effectively violated the most fundamental term of his contract of employment so as to end the viability of his continued employment.

The Arbitrator has some difficulty with the Union's submission, at least as it relates to the application of rule 15.3 in the case at hand. In the Arbitrator's view it is doubtful that the denial of a reasonable amount of leave is in fact grievable. As the language of rule 15.3 indicates, an objection to an arbitrary refusal by the Company "may be handled as unjust treatment under this agreement". As reflected in prior awards of the CROA&DR, such collective agreement language in the railway industry generally intends that the matter may only be dealt with through the grievance procedure, but not beyond that point to arbitration. However, in the case at hand, the Company raised no objection to arbitrability, and the matter need not be, and therefore should not be, dealt with on that basis.

This is clearly not a situation where rule 15.1 can apply, as it is clear that the request for the leave of absence was for a period well in excess of ninety days. Nor, in the Arbitrator's view, can it be said that the Company's decision to deny the leave of absence on the basis of rule 15.3 was arbitrary. In the case at hand "L", an employee with an extensive record of absenteeism, with two prior dismissals, placed himself in a situation where he would be unavailable to fulfill his work obligations for as long as twenty months. While it is unnecessary to draw any hard and fast line, as each case must depend upon its own merits, I am satisfied that in these circumstances the Company's decision not to grant a leave of absence was not unreasonable. Nor, in my view, can the Union be assisted by rule 16.1, a provision which is obviously predicated upon an employee being unavoidably kept from work for "good cause". This is plainly not such a case.

On the whole, I am satisfied that the Company did not violate the collective agreement in its denial of a leave of absence to the grievor. The issue then becomes whether there was just cause for the termination of "L" and, if so, whether this is an appropriate case for a substitution of penalty.

I am satisfied that the Company did have sufficient grounds to terminate "L" from his employment. His prior record of absenteeism, coupled with his inability to be at work for a period of possibly twenty months by reason of his incarceration did, in my view, amply support a conclusion of just cause for his termination. The issue then becomes whether the Arbitrator should substitute his discretion to mitigate the penalty, in all of the circumstances.

After careful consideration I am satisfied that this is a case which does merit the exercise of my discretion. A significant factor in coming to that conclusion is the longevity of the grievor's service, being in excess of thirty years. It is true that the Company did impose discipline upon him, including discharge, in the past. But, for reasons it best appreciates, it has nevertheless continued his employment for an extremely long period. At present the grievor stands some five years from eligibility for an unreduced pension. His personal circumstances and his age, being fifty years, have made the likelihood of "L" finding alternative employment extremely doubtful. Nor has the Company argued in the case at hand that the nature of the infraction which he committed, and for which he has paid his penal debt, is such as to make his continued employment impossible. As noted above, the sole reason stated for discharge was the grievor's inability to be available for work. The decision to terminate his employment was not based, either in whole or in part, on the view that his conviction did or would negatively impact the Company's business interests.

In all of the circumstances, I am satisfied that the reinstatement of the grievor into his employment, albeit without compensation, is a reasonable outcome in the circumstances. Given his prior record of absenteeism, however, I am also satisfied that conditions should be established to protect the Company's legitimate interest in the grievor's ongoing assiduous attendance at work.

The grievance is therefore allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, without loss of seniority and without compensation for wages and benefits lost, subject to the conditions herein described. As a condition of reinstatement, the grievor must agree that his record of attendance at work will be no worse than the average of his peers employed by the Company at Montreal, calculated over a period of not less than two years. Should the grievor fail to meet the attendance average in any given three month period, he shall be subject to immediate discharge, with access to the grievance and arbitration only for the purposes of calculating the attendance rate of his peer group and his own attendance rate, to determine whether a violation of the condition did occur.

The matter is remitted to the parties, and the Arbitrator retains jurisdiction in the event of any dispute concerning the interpretation or implementation of this award.

Dated at Ottawa, this 13th day of July 2006.

_________________________________

MICHEL G. PICHER

ARBITRATOR

SHP610