Mitigating factors considered in reinstatement
Vicki Burke was dismissed by Canada Post after it was discovered she was defrauding her New Brunswick-based employer.
Burke was terminated on Aug. 6, 2014, after an investigation found she had breached corporate policy and defrauded the corporation of funds.
Burke, a postal clerk, was found to have accepted and signed for customer parcels without authorization and to have provided change of address and hold mail services to relatives and customers without payment, resulting in a loss of revenue for the employer.
According to Canada Post, postal clerks are in a position of trust and expected to act with integrity.
Burke was previously disciplined for providing customers with unauthorized discounts. She was suspended for one day as a result, and the employer argued this previous discipline was considered as contributing to progressive discipline when Burke was terminated.
The employer argued her continued defrauding of Canada Post constituted major misconduct.
Burke wrote a letter of apology promising to follow the corporate policy to the letter if given a chance to prove herself.
Her union, the Canadian Union of Postal Workers, argued Burke was discharged without just, reasonable or sufficient cause.
Arbitrator weighs circumstances
Arbitrator Wayne Thistle considered the case’s mitigating circumstances, taking into account the fact Burke was a long-service employee of 19 years, as well as the fact she received no personal financial benefit from her misconduct.
Thistle also considered Burke’s letter of apology to the Canada Post and his opinion that there was a very reasonable likelihood that she would exhibit good behaviour in the future.
Additionally, Thistle made note of the fact Burke made no effort to conceal any of her actions.
Accordingly, he said, it could be presumably concluded Burke thought these actions were not contrary to Canada Post’s corporate policy.
This was further supported by the fact that there was no indication Burke’s misconduct had any negative impact on customers, nor did it cause any damage to the employer’s reputation.
Thistle acknowledged that when an employer imposes disciplinary sanctions, this is done, in part, to deter other employees from engaging in similar misconduct.
However, he found a substitution of Burke’s dismissal for a lengthy suspension would not compromise this deterrent effect.
"After careful consideration of all the evidence and the arguments, I am not satisfied that there are grounds for the discharge of the grievor," Thistle ruled.
"Her conduct was egregious in that there was a serious violation of corporate policy and procedures but I cannot conclude that the bond of trust in the employment relationship was so irreparably compromised that she could not be reinstated."
Thistle therefore substituted Burke’s termination for a time-served suspension without compensation.
He ordered she be reinstated without any retroactive compensation or benefits within two weeks of his ruling.
Reference: Canada Post Corporation and the Canadian Union of Postal Workers. Wayne Thistle — arbitrator. Melanie Crescenzi for the employer, Jim Gallant for the union. Oct. 8, 2015.