CPR conductor tried to arrange a series of unpaid leaves to hide fact he was in jail
D.C. was a conductor with the Canadian Pacific Railway. He had about 14 years’ service when the company closed his employment file — in effect terminating him — on Nov. 29, 2007. He was regarded as a generally positive employee.
However, sometime before 2005, D.C. was involved in an attempted armed robbery. A vehicle pursuit also figured in the crime, which resulted in the accidental death of a young girl.
D.C. was charged with causing death by criminal negligence, and possession of stolen property obtained by crime. D.C. pled guilty and was sentenced to 74 months in jail.
Leaves extended
The employer remained unaware of D.C.’s incarceration for a number of years.
Through his union, D.C. applied for a six-month leave of absence following the incident. That leave was extended for a further six months and for another six months after that as authorized by an April 12, 2007, letter from a company manager.
The manager provided the letter for D.C. based on information supplied by D.C.’s girlfriend. She said D.C. was in the process of defending himself against an improper criminal charge. The letter affirmed D.C. was on an unpaid leave of absence and he would resume his status as an employee upon his return.
The company became aware of D.C.’s circumstances sometime after authorizing his leave extension in April 2007.
The company sent a letter to D.C.’s last known address advising him to attend a meeting scheduled for November 28, after the end of his last leave of absence.
D.C. was a no-show. The employer sent another letter informing D.C. that his employment file had been "closed."
The union grieved
The union said that the employer’s actions were unwarranted and were in violation of the collective agreement. The employer had not conducted an investigation, nor had it given D.C. any notice that it intended to close his employment file. The union said that D.C. had paid his debt to society and that he had overcome problems with drugs and alcohol that had contributed to his criminal behaviour. The union said D.C. should be reinstated.
The arbitrator acknowledged the union’s assertion that there can be no automatic assumption that a criminal conviction — even one that leads to subsequent incarceration — is necessarily inimical to the continuation of the employment relationship.
Each case must be assessed on its own merits according to the relevant factors, including the nature of the offence, the employee’s disciplinary record, the nature of the employee’s work and his or her efforts at rehabilitation.
The public interest is also a factor, the Arbitrator said, citing an earlier decision in CROA 1645:
"Obviously, careful consideration must be given to the reinstatement of any employee who is absent without leave due to an incarceration for a serious criminal offense, having particular regard to the need of the Company to provide, and appear to provide a public service consistent with the highest standards of safety and integrity in its employees."
Lack of candour
The arbitrator dismissed the grievance.
D.C. was unable to meet his service obligations to the company for a period of six years while he was incarcerated.
However, the Arbitrator said, it was D.C.’s lack of candour about his circumstances that really served to sever the employment relationship.
D.C. had purposely withheld information about his circumstances in order to create a false impression.
"As the facts disclose, not only did the grievor commit the crime for which he was incarcerated, he also engaged in a course of conduct and communication calculated, on the one hand, to keep his employer unaware of his circumstances and, on the other hand, to maintain his employment status and his eventual ability to return to work…In the arbitrator’s view this is not a compelling case for a compassionate reinstatement of the grievor. If anything, his conduct while incarcerated, and his total lack of candour in his relations with his employer, were such as to sever the bond of trust essential to the employment relationship."
