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Does child porn conviction merit firing?

|Written By Glenn Kauth

Can an employer fire an employee convicted of an offence as serious as possessing and making available child pornography?

That’s one of the questions considered in a new Ontario labour arbitration award involving Canada Post Corp. and a 44-year-old mobile letter carrier.

Canada Post Corp. v. Canadian Union of Postal Workers, dealt with the employer’s termination of the carrier after he failed to show up for work while he was in jail.

In November 2009, the court convicted the carrier of the offences and sentenced him to “one year on the first count and two to six months on the second count to be served consecutively,” arbitrator Owen Shime noted in his award in the union’s favour. In the meantime, the employee had already requested a one-year leave without pay for “personal reasons.”

The carrier’s superintendent, Thomas Keane, however, granted a three-month leave in accordance with the collective agreement that provides for absences for that time period with the potential for extensions. When the carrier failed to show up for work on Feb. 22, 2010, Keane responded with a letter threatening “disciplinary action up to and including discharge.” Keane had already rejected the carrier’s earlier request for an extension of the leave.

Canada Post, meanwhile, had been well aware of the carrier’s criminal charges and his ultimate conviction. On March 17, 2010, it fired him for not showing up for work.

Shime’s Jan. 2 award notes several complicating factors in the case. They included the fact the carrier’s route included deliveries to community centres and schools, a potential concern given the nature of the convictions. In addition, Shime noted the company didn’t advise him of the potential of termination until his leave of absence neared its end in February 2010 and offered no alternatives such a suspension.

Further, the award documents the carrier’s solid work record and “good relationships with his colleagues and supervisors.” The charges, dating back to June 2007, took place at his home.

Ultimately, Shime noted, the carrier ended up on social assistance with few prospects for employment.

Canada Post argued it didn’t have to grant a one-year absence as requested.

“The corporation argues that while it could have exercised its management’s rights discretion to grant the grievor a one-year leave to serve his jail sentence, there was no provision in the collective agreement entitling an employee to a leave of absence to serve jail time,” Shime noted.

“The grievor was granted a three-month leave pursuant to Article 27.09, which provides for a three-month leave ‘for good and sufficient cause.’ The corporation submits jail leave requests are unusual and granting a one-year leave would have a negative impact on the corporation’s operations. The corporation also claimed the nature of the offences were relevant to the grievor’s job, the workplace, and the corporation’s public reputation and image and the grievor’s arrest and conviction detrimentally affected his status within the community and the workplace.”

But referring to previous cases, Shime determined Canada Post had granted extended leaves to employees in jail in the past. As a result, he found the company had a duty to exercise its discretion to grant extended leaves “fairly and judiciously” and that it had failed to do so in this case.

He therefore upheld the grievance but left the remedy for a further hearing.


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