The grievor denied he had dumped flyers rather than delivering them, but the evidence was sufficient to rule out anyone else from having committed the offence.
A letter carrier was fired for dumping about 120 pieces of admail into a ravine instead of delivering them. The union grieved.
H.G. had two years’ service as a letter carrier when he was fired on Dec. 9, 2009. Discipline on his record at the time included a one-day suspension and a five-day suspension.
On Nov. 20, 2009, H.G. covered a walk for a vacationing letter carrier. After that he did overtime work on two other walks. H.G. was assigned one of the employer’s window vans for the day to help him get around.
One of H.G.’s tasks that day was to deliver about 150 folder-style pieces of admail for an automobile manufacturer.
At about 2:30 in the afternoon on Nov. 20, a resident along the route called the employer to report that she had witnessed someone park one of the employer’s vans near her house, exit the vehicle and then dump flyers into a ravine. The caller was concerned about littering. While she was unable to identify the driver, her general description with respect to build and hair colour did not exclude H.G.
A supervisor investigated the following week, interviewing the caller at her residence and accompanying her to where the flyers were dumped in the ravine. About 120 flyers were recovered. Photos were taken. The caller also provided a written statement.
H.G. was suspended on Nov. 24 pending the outcome of an investigation into the incident.
Denied accusations
As part of the investigation, H.G. was interviewed on Nov. 27. He denied dumping the flyers. The caller who witnessed the incident also attended at the depot where she was asked to pick out the vehicle she saw from a grouping of the different vehicle types used by the post office. She picked out the type of vehicle that was assigned to H.G. on the day in question.
H.G. was fired. The letter of termination said that H.G.’s unauthorized disposal of the admail entrusted to him was a breach of trust.
The union argued that suspicion is insufficient to support a case for termination. The burden of proof to establish the charge was on the employer and the employer had not discharged that burden. The evidence, such as it was, was only circumstantial. Where circumstantial evidence is to be relied upon, it must not only point to the charged employee, it must also exclude any other employee from having committed the offence. In this case, any number of letter carriers from adjacent routes could have disposed of the admail in the ravine, the union said.
The Arbitrator acknowledged that a case built on circumstantial evidence must not be vulnerable to another plausible theory that could explain the misconduct.
However, those concerns did not apply here, the Arbitrator said.
The union’s suggestion that someone other than H.G. might have been responsible for the actions witnessed by the caller was not plausible.
“In my view the most critical piece of evidence in the instant case is the eyewitness identification, which I consider to have remained unshaken, of the vehicle in question by [the caller].”
It was undisputed that the only vehicle of that type in the area on that day was assigned to H.G., the Arbitrator said.
Fanciful theories insufficient
“[T]o satisfy the second branch of the rule with respect to circumstantial evidence, there must be something more than the assertion of unfounded possibilities or fanciful theories. Very simply, no other employee can be credibly linked to the window van which the grievor was driving on walk #10 on Nov. 20, 2009.”
The second key piece of circumstantial evidence was the fact that H.G. was in the area when the caller witnessed the incident.
“In my opinion, that fact, coupled with the unmistakable identification of the window van, leaves little responsible doubt with respect to [H.G.’s] presence and involvement in the incident which was observed by [the caller].”
Deliberate destruction and non-delivery of the mail is among the most serious offences possible for a mail carrier. While not every case of undelivered mail results in termination, significant mitigating factors would be required to reduce the penalty in these circumstances, the Arbitrator said.
His short length of service and his “unenviable” disciplinary record did not serve H.G.
“Regrettably,” the Arbitrator said, there was little or nothing to mitigate the termination in this case.
The grievance was dismissed.
Reference: Canada Post Corporation and Canadian Union of Postal Workers. Michel G. Picher — Adjudicator. Jeremy Warning for the Employer. Jeffrey Andrew for the Union. Oct. 24, 2011. 18 pp.
