Mail carrier allegedly exposed himself

Was firing too harsh for long-time employee with an otherwise clean record?

This instalment of You Make the Call looks at a case where a long-serving employee with a previously clean record was fired for indecently exposing himself to a customer and subsequently refusing to attend a medical examination arranged by the employer.

The worker, a mail carrier, had worked for Canada Post for 15 years without any performance or disciplinary issues. On Oct. 22, 2004, Canada Post received a complaint from a customer that he had exposed his genitals to her while delivering a parcel. After being confronted, the employee denied it and left work early, indicating he was going to see his doctor. He was immediately suspended until Canada Post could investigate the complaint and determine if it was safe to allow him to be in contact with customers and co-workers. Canada Post wanted to see a medical assessment before it allowed him to return to work.

Canada Post did not receive any adequate medical information regarding the worker over the next few months. It sent a series of letters to the employee indicating he would be disciplined if the medical information was not submitted. The employee’s doctor sent a brief report and also responded to a questionnaire sent by a staff psychiatrist but the information was not adequate.

On March 7, 2005, Canada Post sent another letter to the employee stating that it did not have the information it required and if he did not provide it by March 18 his employment would be terminated.

On March 29, still without the desired medical information, Canada Post arranged for an independent medical examination. The employee declined the examination on April 8, noting he had already provided medical information to the corporation. He was also facing criminal charges from the incident which had not yet been resolved and he had been advised to avoid discussing the case.

In response, Canada Post issued a letter of discharge, dated April 18, explaining that his indecent exposure to a customer was unacceptable behaviour which breached Canada Post’s trust in him. The letter also indicated his failure to provide adequate medical information prevented it from determining if he could safely work with co-workers and customers and breached the collective agreement with the union.

You make the call
• Was firing the employee appropriate punishment?
• Should lesser disciplinary measures have been used?

If you said termination was too harsh and lesser disciplinary measures should have been used, you’re correct. Canada Post did not specify what medical information it needed above what it had already received. The worker had denied any wrongdoing all along, so, in context of the corporation’s investigation and the ongoing criminal case, providing further information on whether he was fit to return safely would acknowledge he had committed the act in the first place. Refusing to do so was not a “disciplinable breach of his obligations to the employer.”

The arbitrator did accept the worker had exposed himself, “based on clear, cogent and convincing evidence,” which was “a serious breach of his obligations and damaging to the employer.”

Despite the breach in trust his actions caused, termination was too extreme of a punishment, the arbitrator ruled. “Particularly because the (employee) was a 15-year employee with a clean record, I have found that discharge was not the appropriate sanction for this misconduct.”

The arbitrator ruled a six-month suspension would be adequate discipline and the worker should be compensated for any loss of pay and seniority starting from April 2005, six months after the initial suspension.

For more information see:

C.U.P.W. v. Canada Post Corp., 2007 CarswellNat 211 (Can. Arb. Bd.).

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