Preliminary motion to void termination fails

Worker caught on camera in altercation with elderly customer
|Canadian Labour Reporter|Last Updated: 08/26/2013

AFTER COMPLAINTS that he swore at and kicked the walker of an elderly customer, a postal worker was rightfully terminated, an arbitrator has decided.

The Canadian Union of Postal Workers (CUPW) grieved on behalf of the worker, Ralston Scarlett. Because the preliminary interview immediately following the incident with the worker was conducted without his union representative, CUPW argued the termination should be voided.

On Aug. 27, 2012, Canada Post received a customer complaint detailing allegations of an altercation with a “postie” that occurred three days earlier.

Canada Post then identified Scarlett as the worker alleged to be involved in the incident. Shortly after, a supervisor approached Scarlett at the end of his shift and asked him about the complaint, as Scarlett had made no mention of any incident.

Both the worker and employer agreed the interview was brief. However, there was disagreement about what questions were asked, according to the decision.

Canada Post maintained the supervisor asked only three questions; to determine whether Scarlett made a delivery to the address, whether a confrontation ensued and why the po- lice weren’t called.

The next day, Scarlett was suspended and notified that he was to attend an interview on Aug. 3, accompanied by his union representative. Scarlett did not speak during that inter- view but instead provided a hand-written statement.

Caught on camera

The employer reviewed his statement, and also considered a transcript describing the contents of a video surveillance tape from the building where the incident occurred that was sup- plied by an official from community housing.

After that, Scarlett was fired.

CUPW argued the supervisor’s inital interview breached the postie’s rights under the contract to be provided with advance notice of a meeting to consider a disciplinary matter and to have a union representative present at that meeting.

These were substantive rights, associated with procedures governing termination and discipline, and designed for the pro- tection of union members.

The union added the termination should be declared void.

But the employer disagreed, saying the meeting was not disciplinary and therefore did not qualify for the protections laid out in the collective agreement.

The object of the meeting was to determine whether or not the complaint was frivolous, so they were not obligated to give notice or have a union representative present. No prior notice was required and neither was it necessary for a union repre- sentative to be present.

Scarlett was not prejudiced as a result of any information that he divulged at that meeting, the employer said.

The written statement he provided contained the same in-

formation and, in any event, the employer did not rely on Scar- lett’s admissions for the basis of the decision to fire him.

As such, the onus was on the union to establish a balance of scenarios that the employer had violated the terms set out in the collective agreement.

And because the union did not, the motion was denied.

Interlude

In his decision, arbitrator Owen Shime acknowledged the con- tractual right to union representation for workers who may be subject to discipline.

However, union representation is not necessarily required in every circumstance at the investigative stage of what may potentially become a disciplinary matter.

“There is an interlude where a possible decision to disci- pline is not reasonably foreseeable and where (Canada Post) is entitled to question employees in order to investigate allega- tions of workplace offences,” Shime noted.

That interlude ends when it becomes “reasonably foresee- able” that discipline may result. The point where the inves- tigation stops and the disciplinary action starts, is when the employer must proceed according to the process laid out in the collective agreement.

The right to union representation in circumstances that may lead to discipline or discharge is both significant and impor- tant, Shime added.

“The issue is an evidentiary one and is not whether an employee is entitled to representation but how a denial of that right is to be treated during the course of an arbitration hearing where other factors are present such as the fairness of the hearing and the proper administration of justice,” the decision reads.

The arbitrator agreed the employer had violated the collec- tive agreement — but to declare the termination void in the cir- cumstances would be an excessive and inappropriate response.

So it was necessary that the remedy for the employer’s breach of the contract be proportionate.

“In my respectful view, those cases that declare discipline and discharge to be null and void based on the failure of representation alone, where there is other evidence inde- pendent of the conversations or circumstances surrounding the denial of representation, cast too broad a net and are disproportionate,” he continued.

Shime ruled that Scarlett’s statements made during the ini- tial interview were inadmissible — and the motion to void the termination was rejected.

Reference: Canada Post Corporation and Canadian Union of Postal Workers. Owen B. Shime — Sole Arbitrator. Christopher Perri for the Union. Shaffin Datoo for the Employer. June 10, 2013. 15pp.