Objections were too late, arbitrator says
A postal worker was fired after he failed to deliver on his employer’s directions.
Nouman Mian was terminated by Canada Post for not returning to work after he was instructed to by his supervisors. Further complicating the matter is that the Canadian Union of Postal Workers (CUPW) was late to file the grievance.
Canada Post initially considered the grievance on its merits and then sought to have the matter dismissed at a later stage of the grievance process because it was not timely.
CUPW argued the employer waived its procedural right under the collective agreement to dismiss the grievance on grounds of timeliness because it had acknowledged it before any attempts to throw it out.
New to the job
But Canada Post said the representative who initially accepted the grievance was new to the job. He was not familiar with the file and was unlikely to have been in a position to form an intent to it based on timeliness.
Moreover, there was confusion about the causes for the late filing. Initially, the cause of the delay was said to be the fragile state of Mian’s mental condition.
However, only later did it become apparent that the worker had indeed filed his claim on time and that it was the union that had dropped the ball and failed to file the grievance within the time limits stipulated in the collective agreement.
The arbitrator accepted that the employer’s representative at the first stage of the grievance process did not give an express or explicit waiver of the time limits.
However, the employer representative did make a determination at that stage that, in his view, the termination was warranted. He had an opportunity at that stage to review the file and raise issues of timeliness at that point. He did not and the grievance proceeded.
Timeliness issue did not arise
Afterwards, consultations between the two parties took place in order to explore avenues of settling the matter. Again, the issue of timeliness did not arise during these discussions, the arbitrator said.
It was about one week after that, and one week before the grievance was to go to arbitration, that the employer’s labour relations officer discovered the grievance was filed outside the time limits set in the collective agreement.
Thus, Canada Post’s objections to the grievance were too late, the arbitrator concluded.
Reference: The Canada Post Corporation and The Canadian Union of Postal Workers. Pamela Cooper Picher— Sole Arbitrator. Madeleine Loewenberg for the Employer. Adrienne Telford for the Union. April 30, 2013. 46pp.
