On February 22, 2010, an arbitrator awarded a New Westminster Letter Carrier $60,725.00 following a dispute involving her claim for lost wages. On June 23, 2008, the Grievor was discharged by Canada Post on the grounds of delay of mail, but that discharge was subsequently overturned by an arbitration award dated June 19, 2009. In that award, Arbitrator Joan Gordon substituted a five day suspension in place of discharge. As a result of that award, the Grievor was entitled to approximately one year of lost wages and benefits.
Following her reinstatement, the Union attempted to engage Canada Post in wage loss discussions. During the period of her discharge, the Grievor, a single mother, actively searched for work and submitted nearly 100 applications and resumes to potential employers. Despite her efforts at mitigating her loss of income, Canada Post refused to make any offer of a settlement. In light of Canada Post’s refusal to settle the Grievor’s claim for lost wages, the Union took the matter back to arbitration.
Immediately into the December 1, 2009 hearing, Canada Post demanded the production of the Grievor’s banking records. Canada Post claimed that the Grievor’s banking records were necessary for a “fair hearing”. Canada Post also claimed that there were issues of credibility. The Union refused to accede to the Corporation’s request and maintained that the Corporation was attempting to go on a fishing expedition to search for something that it could not establish with evidence or theory. On January 15, 2010, Arbitrator Gordon issued an interlocutory award, wherein she dismissed the Corporation’s application and noted that it had not exposed any issues of credibility.
In challenging the Grievor’s claim for lost wages, Canada Post employed two lawyers. One lawyer was employed for the purpose of presenting the Corporation’s case while the other was appointed to conduct an investigation of the Grievor’s job search.
The theme of the Corporation’s case, as in most arbitration hearings, was that the Grievor was dishonest and unreliable. However, that claim was completely rejected by the arbitrator:
…nothing in her evidence supports a finding that she was dishonestabout her job search.
To the contrary, the arbitrator found Canada Post’s “evidence” (which was based on hearsay evidence) to be unreliable and of no merit:
The purpose for which this evidence was adduced was to show that the Grievor’s evidence about her job search was dishonest or incredible. Hearsay evidence (not double hearsay) is admissible in arbitration hearings, but uncorroborated hearsay cannot support a finding on a material issue in dispute. Mr. Copeland candidly admitted that his evidence was hearsay, and I find certain aspects of his evidence were double hearsay. Mr. Copeland was strenuously cross-examined on his findings, and in the end, I am satisfied that the basis on which his findings were made is unreliable.
…Additionally, the reliability of the finding that four contacts denied receiving/having any record of the Grievor’s application was thoroughly undermined in cross-examination. Due to the unreliable nature of this hearsay evidence, I attribute no weight to it.
In her ruling, Arbitrator Gordon awarded the Grievor the amount of $60,725.00 to cover her lost wages, missed householder payments, missed overtime opportunities, missed CTI, missed boot and glove Allowance, and missed over-assessment payments. The Grievor was also credited with the vacation leave and sick leave credits she would have earned had she not been unjustly discharged.
This case offers a good expose of Canada Post hypocrisy. On one level, Canada Post CEO Moya Greene has been preaching a message of fiscal restraint. In reality, there are apparently no financial constraints on the amount of money that Canada Post is willing and prepared to spend in attacking our members’ rights.
In solidarity,
Ken Mooney
Regional Grievance Officer
At
Canada Post, the Customer is Always Right…
A recent arbitration hearing in Penticton has offered an unsightly glimpse of Canada Post’s labour relations philosophy. On May 7, 2009, a Penticton Letter Carrier was terminated following a dispute over the delivery of a singleDell Canada business flyer. Pat Trainor, a Relief Letter Carrier who has worked at Canada Post since 2001, was discharged on the grounds that he “failed to deliver” the flyer and had thereby “damaged Canada Post’s reputation as a reliable service provider”.
On April 27, 2009, the Grievor had brought back three surplus flyers after completing his deliveries, resulting in an interrogation at the hands of his supervisors. He explained that he had completed his deliveries but had not delivered to three vacancies (Canada Post policy does not require the delivery of flyers to vacant homes and businesses). Despite the Grievor’s explanations, his supervisors believed that the Grievor had not delivered the flyer to the address of a hardwood store. Several days after the fact, Darren Smith, a Penticton supervisor, approached the customer in question in his hardwood store during business hours and requested production of the Dell flyer.
Unsurprisingly, the customer had not maintained a journal of his incoming flyers. The customer was understandably unwilling to shut down his business operations in order to conduct a search for the flyer but allowed Smith to forage through his garbage container. Despite his best efforts, Smith was unable to locate the flyer. In fortuitous fashion, the Dell flyer was subsequently discovered in the customer’s vehicle. The customer had used the flyer as a notepad to record a telephone number of a business contact.
After discovering the flyer, the customer wrote a statement to the effect that he was unable to produce the flyer in the short period of time that the post office supervisor was in his store but had later found it on the seat of his vehicle. He also provided the Grievor with the flyer in question, adorned with his handwriting!
In the meantime, Canada Post proceeded with the Grievor’s discharge on the grounds that he had not delivered the flyer to the customer at the hardwood store.
Despite being made aware of the discovery of the flyer and the confirmation of its delivery, Canada Post refused to rescind the Grievor’s discharge. In a June 18, 2009 conversation with a representative of Service Canada, Penticton Superintendent Martha Greger reportedly advised that “she was aware of the letter obtained from the business in question but it was dismissed as it was obtained well after the fact”.
On February 10, 2010, the matter was scheduled for arbitration in Penticton. Immediately into the commencement of the hearing, Canada Post claimed that the Grievor had been dishonest. CPC further claimed that the customer’s representations were “in conflict” with the Corporation’s evidence. In response, the Union maintained that the Grievor had been consistently honest and noted that the customer had absolutely nothing to gain by concocting a story regarding his receipt of the Dell flyer. In short order, the matter was settled by the intervention of the arbitrator.
As a result, the Grievor was reinstated to his employment. Under the terms of the Order, the Grievor is to be credited with lost vacation and sick leave benefits, the 2009 CTI payment, missed overtime opportunities, missed householder premiums, missed boot and glove allowance, and a financial settlement in an amount satisfactory to both the Grievor and the Union.
Campbell River, Courtenay, Post Alberni, Nanaimo and Victoria— Canada Post has announced service cutbacks which could affect all the communities on Vancouver Island.
In a notice sent September 15, 2009, Canada Post announced that it was consolidating mail sortation in Victoria. They further announced that all mail accepted at all offices on Vancouver Island will be sent by truck to Victoria to be sorted by the mechanical equipment that is in the Victoria Office on Glanford Drive.
“This change represents a serious service cut on Vancouver Island,” stated John Bail, National Director Canadian Union of Postal Workers Pacific Region. “Historically all local mail sent to these offices was sorted and delivered the next business day with very few exceptions.”
“Now the mail will be taking at least 2 business days and possibly longer to return to the city of origin.”
The union plans on opposing this cutback, however, their Collective Agreement does not protect them from this type of change and they cannot defend postal service in the communities where they work simply by using their contract with Canada Post. “The results of these changes will reduce employment in these communities and lengthen the time it takes for business to communicate by mail,” stated Bail.
“We call upon the public and the elected representatives to question the need for these service cutbacks” said Bail.“We need you to contact your Member of Parliament and complain.”
“We will also be taking our concerns locally to our municipal and provincial elected leaders and asking them for assistance in this matter.” He stated that all the Union Representatives on Vancouver Island oppose this change, including the representatives in Victoria where the mail will be sorted. “Our jobs depend on providing good public service,” stated John Bail.
“It is unnecessary and not environmentally sound to truck mail up and down Vancouver Island just to attempt to reduce staff by a few hours. Canada Post is not taking the customer into account as they make changes to the work at the Corporation.”
“Canada Post is spending up to 3 billion dollars on modernizing their structure, but not a single cent on service improvements. Under the guidance of Moya Greene, Canada Post has lost their vision to provide decent postal service to all Canadians regardless of where they live,” claimed Bail. “Once again, they are reducing service to rural communities and creating a second class system for isolated communities.”
Article 21.03 of our Collective Agreement provides for wage loss protection when circumstances not directly attributable to an employee prevent his or her reporting for duty. Article 21.03 states as follows:
Where conditions warrant it, special leave with pay may be granted when circumstances not directly attributable to the employee, including but not limited to illness in the family, as defined in clause 21.02, prevent his or her reporting for duty. Special leave shall not be unreasonably withheld.
Special leave is a discretionary leave, which simply means that management has the discretion of granting it. However, Article 21.03 states that special leave shall not be unreasonably withheld. Therefore, a grievance may be filed if the Union feels that the Corporation was unreasonable in denying a special leave application.
Special leave applications often follow on the heels of adverse weather conditions, such as snowstorms, blackouts, and other unpredictable occurrences.
However, special leave also applies to family illnesses and other situations that may arise which have the effect of preventing an employee from reporting to work for reasons beyond his/her control. For example, arbitrators have awarded special leave to employees who have attended specialist appointments. Arbitrators have also frequently awarded special leave to employees whose spouses, children, and other family members have required care when suffering from illness.
To qualify for special leave, an employee must be prevented from reporting for duty for reasons not directly attributable to the employee. The facts surrounding an application for special leave will ultimately determine whether or not special leave is warranted in each case and arbitrators have held that the employer has an obligation to make a legitimate inquiry into each special application.
The standard to be applied when assessing special leave applications is one of reasonableness. In adverse weather conditions, a reasonable attempt to report for duty might entail an attempt to dig one’s car out of the snow. It might also involve utilizing public transportation. In cases involving illness, a reasonable attempt to report for duty might include an attempt to secure other arrangements for the care of sick children or relatives.
However, as Arbitrator Norman once observed, the test in cases involving an illness in the family will involve consideration of what a responsible person would do under the circumstances:
As was the case in Rosario, it is not a matter of the parent being physically prevented from reporting for duty. The test is rather whether a reasonable person, in the shoes of the parent in question, would feel that they were obliged to stay with the sick child.
While one is required to make a reasonable effort to report for duty, one is not required to cross the threshold of heroism. One is simply expected to make a reasonable effort to report for duty.
Arbitrators have made many rulings on special leave over the years, but ultimately, an application for special leave will be assessed by the fact pattern particular to each individual application. In assessing each case, arbitrators have held that the Corporation must make a legitimate inquiry into the circumstances surrounding each application in order to be in a position to make a reasonable decision based on the merits of the application. Further, an employee’s inability to report for duty must be for reasons beyond his/her control, and he/she must make reasonable attempts to report for duty. If Canada Post is unreasonable in denying an application for special leave, a grievance may be filed by the Union.
June 23, 2008, the Grievor was discharged by Canada Post on the grounds of delay of mail, but that discharge was subsequently overturned by an arbitration award dated June 19, 2009. In that award, Arbitrator Joan Gordon substituted a five day suspension in place of discharge. As a result of that award, the Grievor was entitled to approximately one year of lost wages and benefits.
the Grievor’s banking records were necessary for a “fair hearing”. Canada Post also claimed that there were issues of credibility. The Union refused to accede to the Corporation’s request and maintained that the Corporation was attempting to go on a fishing expedition to search for something that it could not establish with evidence or theory. On January 15, 2010, Arbitrator Gordon issued an interlocutory award, wherein she dismissed the Corporation’s application and noted that it had not exposed any issues of credibility.
worked at Canada Post since 2001, was discharged on the grounds that he “failed to deliver” the flyer and had thereby “damaged Canada Post’s reputation as a reliable service provider”.
While one is required to make a reasonable effort to report for duty, one is not required to cross the threshold of heroism. One is simply expected to make a reasonable effort to report for duty.