Canada Post employee didn't fulfil criteria of 'reasonable availability'
Canada Post unjustly dismissed a postal clerk for unreasonable availability that wasn’t specifically defined in the collective agreement, an arbitrator has ruled.
C. Seivright was a temporary postal clerk for Canada Post, hired in November 2011. His offer of employment stated that his “services may or may not be required on a daily basis” and he would be contacted when he was needed to fill in for full-time employees who were absent and unable to work. It also indicated that his position was “of a temporary and irregular nature” and he had to be reasonably available when work assignments were offered to him. The offer included a warning that if he repeatedly refused work assignments or there were multiple unsuccessful attempts at contacting him, they would be documented under a clause in the collective agreement.
The collective agreement between Canada Post and its union, the Canadian Union of Postal Workers (CUPW) stated that a temporary employee would be terminated when the employee hasn’t demonstrated “reasonable availability in the acceptance of work assignments during any six consecutive months.” It also stated that this clause didn’t apply during any period in which the employee was on accepted leave with prior written notice.
At the time Seivright was hired, the facility where he worked — the York Distribution Centre in Ontario — closed at 3 p.m. on Saturdays and 11 p.m. on Sundays.
During busy periods from November to early January, the facility would add an extra Sunday shift.
Seivright informed the staffing officer at the time of hiring that he had other work commitments as a television voiceover actor and stand-in, which required him being on call.
The staffing officer replied that it would be fine if he wasn’t able to accept shifts all of the time, as Canada Post didn’t guarantee any amount of hours and encouraged other employment for temporary employees such as Seivright.
For some time, Canada Post called Seivright during predictable hours for shift assignments.
If Seivright didn’t answer, he was given 10 minutes to respond until the next temporary worker on the seniority list was contacted. If Seivright called back later than that, he would receive the assignment if the shift was still available. If the shift was offered to someone else, it didn’t count against him.
Seivright also informed the staffing officer of certain dates he wouldn’t be available and they wouldn’t call him on those dates. No one told him that there was a minimum number of shifts he had to accept.
In late October 2014, Canada Post started using an automated calling system called Eclipse for contacting temporary employees regarding assignments. Seivright found the system called him at unpredictable times — sometimes as early as 7 a.m. and sometimes as late after midnight. Sometimes he only had short notice of less than two hours to report to a shift.
Canada Post reviewed the Eclipse data every two months and calculated the average acceptance rate.
Any employees who fell below the average were considered for review. Absences for legitimate reasons were then factored in, and if an employee’s availability rate was still too low, a warning letter was sent.
Because of the unpredictability of the calls, Seivright missed a few shifts because he was asleep after working the previous night shift and he often received calls seven days a week.
In early November 2014, Seivright requested leave without pay until mid-December because of family-related issues. The new staffing officer told him temporary employees were not entitled to unpaid leave and if he chose not to accept Eclipse calls during that period, it would count against him.
However, only one per day would count — if he was called multiple times in one day and declined all of them, it would only count as one against him.
If Seivright accepted the last one, nothing would count against him.
After the Eclipse system was implemented, Seivright declined certain shift offers due to audition and acting commitments, as well as family obligations. Though he had originally been told there were no consequences to not accepting shifts, a supervisor told him after Eclipse was introduced the acceptance rate should be 50 per cent.
This was followed by letters in May and July 2015 indicated that his level of availability was unacceptable and his employment would be terminated if it didn’t improve.
In June 2015, Seivright and several other temporary employees complained to Canada Post about the time of Eclipse calls, especially early morning calls after a night shift was worked.
Seivright was also concerned he was getting calls to work Sunday shifts that summer when he always went to church and spent Sundays with his family.
In August 2015, the York Distribution Centre’s manager of production control and reporting reviewed data from the Eclipse system and discovered that over the six-month period from Feb. 26 to Aug. 29, Seivright accepted 57 out of 151 shift offers — an acceptance rate of 37.8 per cent.
This was considered to be well below the average acceptance rate of his peer group, which was 49.9 per cent.
The manager determined that Seivright had not demonstrated reasonable availability for work assignments — as stipulated in the collective agreement — and terminated Seivright’s employment on Sept. 17, 2015.
CUPW filed a grievance for unjust dismissal, claiming Seivright had been consistent in his attendance at work.
Arbitrator Owen Shime found that the collective agreement made it clear that temporary employees that don’t demonstrate reasonable availability shall be terminated and also required “just, reasonable and sufficient cause” to discharge an employee. The reasonable availability clause made sense because the reason Canada Post employed temps was to support the delivery of mail when there are high volumes or absent employees.
However, Shime found that the collective agreement, while requiring “reasonable availability,” didn’t define a specific acceptance rate nor did it indicate an employee’s acceptance rate should be measured against the peer average to determine reasonable availability.
In fact, acceptance rates weren’t measured until the Eclipse calling system was implemented, but the collective agreement wasn’t altered to recognize that.
In addition, Canada Post’s guide for temporary employee availability discussed reasonable availability over any six-month period, but also didn’t set any parameters for it.
Shime also found that Canada Post didn’t give any consideration as to why Seivright declined some shifts or didn’t answer some calls, when Seivright had made the corporation aware of his other job and family obligations — especially since Seivright had been told when he started that he wouldn’t be penalized for declining shift offers.
Simply using the formula it had decided upon when the Eclipse system was implemented without considering any other factors was unjust, said Shime.
“If the parties had intended that reasonable availability be determined by a mathematical formula they could have simply provided for it in the collective agreement,” said Shime.
“What is so startling about (Seivright’s) termination was that it is based solely on the percentage numbers with no consideration given to his personal circumstances.”
Canada Post was ordered to reinstate Seivright with his seniority unchanged and compensation for lost pay.
For more information see:
• Canada Post Corp. and CUPW (Seivright), Re, 2016 CarswellNat 5923 (Can. Arb.).
