FPSLREB Decisions

[1]     This grievance concerns the termination of employment of Michael Maloney, an indeterminate seasonal trail crew labourer at the GL-ELE-03 group and level at the Parks Canada Agency (PCA). Mr. Maloney subsequently filed a grievance on May 28, 2001, contesting the termination of his employment.

[2]     The reasons for the termination of his employment are stated in a letter dated May 7, 2001, from Duane West, Superintendent, Kluane National Park and Reserve (Exhibit E-4): .

Further to our meeting of May 1st, 2001 involving yourself, Sean Fitzgerald, and myself, I have conducted a subsequent review and investigation of the situation regarding the loss of your driver's license. Our review has determined that you are currently under an Administrative Suspension of your motor vehicle operator's license for three years, following various offences of Driving while Impaired and Driving a vehicle while Disqualified.

I have also investigated your failure to advise your supervisor or Park's management as to this suspension, and the issue of trust with our employees. Your conduct in this situation was inappropriate as you were not forthright with your employer, your actions were secretive and deceptive. .

Further, a driver's license is a condition of employment in your position with Parks Canada. As you no longer possess a valid vehicle operator's license, and will not be in a position to fulfill all the duties of your position for a total of three years, you do not meet this condition of employment. We can not reasonably accommodate your lack of a necessary license and certification for that period of time. .

Therefore, by virtue of the authority sub-delegated to me under Section 12(4) of the Parks Canada Agency Act and pursuant to section 13(3)(b) of the same Act, your employment with Parks Canada is hereby terminated for cause. This termination will take effect immediately. You have the right to seek recourse to this decision in accordance with the mechanisms available to you. Joan Emslie of our Human Resources Compensation Office is available to explain the implications this decision will have on your benefits.

[3]     Counsel for the employer filed four exhibits and called two witnesses; the grievor's representative did not file any exhibits and called two witnesses, including the grievor. .

The Facts

[4]     Brian Bakker is a trail crew supervisor at the GL-MAN-SCII group and level and has worked for the PCA for 15 years. Mr. Bakker testified that he supervises four to five labourers whose primary duties are to maintain 205 kilometres of trails in Kluane National Park (KNP). Hikers, park staff, outdoor recreationalists and wildlife enthusiasts use these trails. KNP was designated a world heritage site in 1980. Within KNP are the world's largest non-polar ice caps, large glaciers and Mount Logan, which stands at 19,525 feet and is the highest mountain peak in North America. KNP covers some 27,000 square kilometres. Mr. Bakker's other duties include human resources activities such as staffing, arranging park equipment and logistic needs.

[5]     Mr. Bakker's testimony can be summarized as follows. The grievor's seasonal employment began approximately on May 1st and ended approximately on September 5th of each year. Mr. Bakker and the grievor were good friends prior to 1999. In 1999, however, the grievor started reporting for work late and took a series of unauthorized absences. The grievor was counselled and his Personal Evaluation Report (PER) was downgraded from superior to satisfactory.

[6]     In May 2000, the grievor again began exhibiting signs of repetitive absences, usually after paydays. On Monday, May 8, 2000, the grievor was scheduled to attend and complete a chainsaw orientation course; this course was mandatory. The grievor did attend the course on the Monday, Tuesday and Wednesday; however, on Thursday, May 11, he was absent. Mr. Bakker testified that, as his supervisor, he went to the grievor's residence since the grievor had no telephone. After a brief discussion, Mr. Bakker requested that the grievor provide a doctor's note validating his absence. The grievor was to bring the doctor's certificate to work the following Monday.

[7]     Near the end of May, the grievor again reported for work late on a number of occasions and one day Mr. Bakker "dressed" him down in front of the crew. Mr. Bakker testified that he apologized to the grievor for his actions in front of the crew and stated to the grievor "in future we would do this privately".

[8]     Mr. Bakker testified that on June 22, 2000, the grievor reported for work 45 minutes late. The following day, at approximately 2:45 a.m., the grievor received a roadside suspension of his driver's license and was jailed. Mr. Bakker testified that he was unaware of the suspension at this time.

[9]     On the Tuesday following the Canada Day holiday in July 2000, Mr. Bakker picked the grievor up at his residence to drive him to work and asked him where his vehicle was. The grievor responded: "I didn't pay the registration and it was impounded." Mr. Bakker stated he took the grievor at his word and had no reason to suspect that the grievor's driver's license had been suspended.

[10]     On July 7, 2000, a meeting was convened to review the grievor's allegations that Mr. Bakker was treating him unfairly. In attendance was Bruce Sundbo, the Public Service Alliance of Canada local president, Shawn Fitzgerald, a shop steward, Lloyd Freeze, Mr. Bakker's manager, and Mr. Bakker. The grievor chose not to attend the meeting; however, the participants talked through a number of work-related issues.

[11]     On July 18, 2000, there was a very serious motor vehicle accident outside KNP, which involved a number of injured and dead persons. Mr. Bakker testified that while he was assisting the injured he noticed the grievor's presence. The next day, exhausted from helping with the accident, Mr. Bakker asked the grievor to drive the PCA Dodge truck and trailer with two all-terrain vehicles (ATV's) to Mush Lake some 40 kilometres from Haines Junction. The grievor drove and Mr. Bakker sat on the passenger side. Again, his testimony was that he had no reason to believe that the grievor had no driver's license. Mr. Bakker stated that the grievor needed a driver's license as a legal requirement to drive an ATV.

[12]     On July 25, 2000, the crew, including the grievor, and Mr. Bakker travelled by helicopter into the backcountry for eight days. According to Mr. Bakker, in preparation for the trip, the grievor was marshalling park vehicles. The crew needed to drive PCA vehicles to secure supplies, etc.

[13]     On August 19, 2000, Mr. Bakker again picked the grievor up at his residence to drive him in to work. He asked him: "When are you getting your vehicle back?", to which the grievor responded: "Not sure. I haven't paid my insurance."

[14]     In late August 2000, Mr. Bakker began to hear rumours, as Whitehorse is a small town, that the grievor did not have a driver's license. He approached Donna Harriott, in Human Resources, since he believed this to be a serious matter and also talked to Mr. Freeze about the situation.

[15]     Mr. Bakker stated that the grievor was seasonally laid off on September 8, 2000. Mr. Bakker testified that on October 7, 2000, he was at a local bar when the grievor, who came out of nowhere, cuffed him across the back of his head hard enough to knock him out of his chair. Mr. Bakker stated that he got up and left but, as he was leaving, the grievor said: "I'd better not see you or Lloyd Freeze in a back alley." The next day, on October 8, at a local store, the grievor stated to Mr. Bakker: "You'd better watch yourself."

[16]     On March 7, 2001, the grievor again verbally assaulted Mr. Bakker in a bar by yelling at him: "Let's go outside and have it on." Mr. Bakker testified that he left the scene.

[17]     On April 17, 2001, in preparation for the upcoming season, a meeting was held with the grievor, Messrs. Fitzgerald, Freeze and Bakker at the KNP Operations Centre. This meeting was an opportunity for the grievor to discuss and respond to a number of management concerns. These concerns were the grievor's reluctance to complete portions of his PER for which he was responsible (such as his goals and objectives and a 360-degree evaluation of his supervisor, Mr. Bakker), even though he was asked to do so on numerous occasions. Other issues reviewed and discussed were the grievor's aggressive behaviour towards his supervisor, his impaired driving charge and an outstanding sum of $1200 that the grievor had accepted as a travel advance for a trip that he ended up not taking.

[18]     The grievor denied his impaired driving charge and agreed that the portions of the PER that he was responsible for were not completed; he indicated that Mr. Bakker was the reason for his aggressive behaviour. He, however, agreed to and did repay the $1200 advance.

[19]     On May 5, 2001, Mr. Bakker started the operational season and the meeting of April 17, 2001, was his last official involvement with the grievor.

[20]     In January 2002, the grievor and Mr. Bakker met outside working hours at the Castaway Bar where the grievor began yelling at Mr. Bakker. Mr. Bakker stated that the key is avoidance; therefore, he walked away.

[21]     Mr. Bakker identified Exhibit E-1, the grievor's offer of appointment letter, dated October 30, 1998, which he had signed. It states, in part: .

. . .

Annex "A" to this letter identifies the Conditions of Employment applicable to this position. These conditions, as identified, are essential to both obtaining employment in this position, and to being retained in this position. You are requested to sign and return the duplicate copy of this document with your letter of acceptance.

. . .

Annex "A" states:

. . .

  X   b. In order to be appointed to this position, you must posses a valid Class 5 driver's license. You will be required to maintain the validity of this driver's license throughout your employment in this position. You are requested to provide proof of your driver's license on acceptance to this offer.

. . .

[22]     Mr. Bakker identified Exhibit E-2 as the "Government of Yukon Driver Abstract". This document confirms the grievor was driving while under the influence on June 23, 2000, with a conviction date of September 14, 2000. However, it also revealed another offence of driving while disqualified on August 3, 2000. The term of suspension of the grievor's driver's license for both offences on conviction was three years and the grievor's license would not be reinstated until September 13, 2003.

[23]     During cross-examination, Mr. Bakker stated that the investigation into the grievor's alleged lack of a driver's license was initially assigned to Mr. Freeze (the Warden, Manager of Trail Crew) in mid September 2000 but later involved the Haines Junction Justice Committee, the Royal Canadian Mounted Police (RCMP) and personnel from the court registry. He conceded that no one from management ever approached the grievor during the investigation.

[24]     Mr. Bakker agreed with the grievor's representative that he knew of another trail labourer who had lost his license but was accommodated by his manager. However, that person (who will be identified in this decision as "Mr. B") had been a full-time employee for five years, was straightforward with management and reported the incident to his supervisor immediately after he was charged with the offence. Mr. Bakker stated that "Mr. B" did not report to him and that the grievor had not disclosed that he had lost his driver's license.

[25]     Duane West is the Site Superintendent at KNP. He has worked at the PCA for 30 years and his primary duties are as follows: he is the senior manager on site and five managers report to him, as well as 18 year-round and 18 seasonal employees.

[26]     Mr. West testified that he was apprised by Mr. Bakker of the grievor's deteriorating PER, his refusal to complete his portion of the PER and the breakdown of the bond of trust between the grievor and Mr. Bakker in September 2000. He also was aware of the grievor's driver's license suspension sometime in November 2000.

[27]     Mr. West testified that he became formally involved during a meeting held with the grievor and his union representative, Mr. Fitzgerald, on May 1, 2001. It was during this meeting that the grievor stated that he did not need a driver's license to perform his duties at KNP but he never admitted to driving PCA vehicles while his license was under suspension. The grievor never showed any remorse. The PCA terms and conditions of employment emphatically state that an employee must have a valid driver's license. Mr. West stated that the grievor never appreciated the severity of his actions.

[28]     Mr. West stated that he sought advice from his human resources advisor and reviewed his authority from the PCA "Delegation of Human Resources Authorities" (Exhibit E-3) effective April 1, 1999, before he signed the letter of termination (Exhibit E-4). His rationale to terminate the grievor's employment was as follows:

• The length of the driver license suspension (three years) would prevent the grievor from effectively carrying out his duties.

• The grievor concealed the fact that he had lost his driver's license, thereby violating his terms and conditions of employment.

• The grievor failed to inform management of the loss of his driver's license and management had to investigate the matter.

• The grievor drove PCA vehicles while his driver's license was suspended.

• The bond of trust between the grievor and the PCA has been broken.

• The grievor's job was an entry level one and this is not the type of person whom the PCA wished to hire as a full-time employee.

[29]     During cross-examination, Mr. West stated that he believed it was clear to the grievor that a possible outcome of the meeting of May 1, 2001, could be the termination of his employment. He also stated that he took Mr. Bakker's word that the grievor had driven PCA vehicles while his driver's license was suspended.

[30]     Todd Chambers began working as a trail crew labourer at KNP in 1996 and ended his employment in 2002.

[31]     Mr. Chambers testified that, in the summer of 2000, he and the grievor were on the same crew. He stated that the grievor had informed him of the suspension of his driver's license and the issuance of a temporary one; however, Mr. Chambers could not recall when this occurred. Mr. Chambers also testified that he never saw the grievor driving PCA vehicles during the time his license was suspended.

[32]     During cross-examination, the witness conceded that he never informed his supervisor, Mr. Bakker, or any other person in management that the grievor had lost his driver's license. Counsel for the employer also ascertained from Mr. Chambers that he was unaware that the grievor had been charged with driving while his license was suspended. Mr. Chambers was also unclear as to whether the grievor had shown him his temporary license or not.

[33]     When asked if he believed Mr. Bakker was lying about the specific dates the grievor had driven PCA vehicles while his license was suspended, he replied: "No, I don't believe he was lying, but it was three years ago and perhaps the dates and times may be confused."

[34]     The grievor, Michael Maloney, testified that he began working at KNP in 1995 as a trail crew labourer. For six seasons he held different roles, the second and third years acting as a lead hand and the others as a labourer.

[35]     Mr. Maloney stated that during the first week of May 2000, while he was attending a chainsaw orientation course, he became ill with the flu. Mr. Bakker came to his residence and informed him that, if he did not provide a doctor's certificate by 4:30 p.m. that day, he would be fired. The grievor testified that he took Mr. Bakker's threat seriously.

[36]     The grievor also stated that on June 23, 2000, he was stopped by the police in Whitehorse, failed a breathalyser test, was charged with driving under the influence (DUI) and then released. He was not jailed as Mr. Bakker testified. He stated he received a 24-hour roadside suspension and was issued a two-week temporary license; on the expiry of this temporary license, his regular license was then automatically suspended for 90 days.

[37]     Mr. Maloney further stated that on August 3, 2000, he was "moving stuff" with his truck when he was stopped by Constable Shirley Telep and asked to provide his driver's license. He was subsequently charged under the Motor Vehicle Act for driving while under a license suspension.

[38]     On September 14, 2000, he appeared in court and pleaded guilty to both offences (DUI and driving under suspension), resulting in a one-year driving suspension. On that day, he stated that he reported the events and results of his court appearance to Mr. Freeze.

[39]     The grievor further stated that, unknown to him, the Motor Vehicle Board met to review his file and subsequently increased his driver's license suspension by another two years because of the August 3, 2000 arrest for driving under suspension. During cross-examination, however, he confessed that he had received letters from the Motor Vehicle Board but had thrown them in the garbage without opening them because he had sold his vehicle. He stated that he believed his suspension was only for one year and not three.

[40]     The grievor's testimony was that he did not report the suspension of his driver's license to his supervisor for fear of being fired. He emphasized that at no time did he drive a PCA vehicle while his driver's license was suspended, including on the trip to Mush Lake as testified to by Mr. Bakker. The grievor affirmed he would not have driven a PCA vehicle while under suspension, as the PCA vehicle was uninsured and there would be liability implications that would endanger his fellow crewmembers. He emphasized that, although no one from management had confronted him about whether he did or did not have a driver's license, he continued to perform his duties at the PCA even though he did not have a driver's license. In fact, he knew of another employee who lost his license and was given alternate employment.

[41]     Mr. Maloney referred to the two incidents outside the workplace involving Mr. Bakker. He stated that in the first incident, Mr. Bakker stated he did not want to be seen in the same bar as the grievor and the grievor said, "If you want to go outside, we'll settle this." The grievor stated, however, it never happened; he never physically assaulted Mr. Bakker.

[42]     With respect to the second incident at the Castaway Bar, the grievor stated he never hit Mr. Bakker on the back of the head as Mr. Bakker testified. He stated, "We were outside the bar and I gave him an open-hand gesture, but never hit him." He further stated that it was his belief that he should still be working at PCA, that the employer should have suspended him but not terminated his employment. He maintained he could still perform his duties without a driver's license.

[43]     During cross-examination, the grievor admitted that on June 23, 2000 his vehicle was impounded for one month and he drove to work while under suspension until Constable Telep charged him on August 3, 2000 with driving while under suspension. His vehicle was impounded for another two months. It was after that period of time that he decided to sell his vehicle. He also agreed that he should have opened the letters from the Motor Vehicle Board but since he had sold his vehicle he assumed the notices to be registration forms. He further testified that it was not until the meeting of May 1, 2001, with Mr. West that he realized his driver's license was suspended for three years.

[44]     The grievor agreed he knew the meeting of May 1, 2001, was one of fact-finding and there was the potential that he would be discharged from his employment.

[45]     He admitted it was his obligation to possess and maintain a valid Class 5 driver's license. His decision not to notify his supervisor of his driver's license suspension was based on his belief that, in his words, "I would be gone [discharged] the next day." He also indicated that on July 19, he made up a story to Mr. Bakker as to why he could not drive the PCA vehicle to Mush Lake.

[46]     The grievor's description of the incident outside the Castaway Bar involving Mr. Bakker was, "I made the first move. I was mad at things being said and incidents at KNP, so I made a gesture towards Mr. Bakker". The gesture was clarified as an attempt to "bitch-slap" Mr. Bakker on the right side of his cheek. Fortunately, for Mr. Bakker he moved backwards, thereby avoiding the blow. Bitch-slap is a slang term that refers to an open handed slap.

[47]     During these proceedings, I established through counsel for the employer that at no time throughout the grievance process, including at the final level, had the grievor mentioned or provided evidence to confirm he had met with Mr. Freeze to explain the loss of his driver's license and the three-year suspension. At the time of this hearing, Mr. Freeze was out of the country.

[48]     There was no rebuttal by the grievor's representative.

Arguments

For the Employer

[49]     Counsel argued that the grievor concealed the fact that his driver's license was suspended for one year for DUI, as well as an additional suspension of two years for driving under prohibition. The grievor drove PCA equipment while under suspension, knowing that the possession of a valid driver's license was a requirement of the job. He did not inform his supervisor or PCA management of the suspension of his license; it was the employer who had to initiate an investigation to determine that he had lost his license. The grievor showed no remorse during the meetings with his supervisor and Mr. West. The bond of trust is not built on a foundation of lies; therefore, this erodes the option of any rehabilitative potential.

[50]     The grievor did not come clean with his supervisors in a timely manner, as did "Mr. B". In relation to the possibility of the grievor's reinstatement, physical threats towards a supervisor are unacceptable.

[51]     Counsel for the employer cited the following: Faryna v. Chorny, [1952] 2 D.L.R. 354; Champagne (Board file 166-2-25767) and Copp (Board file 166-2-31431).

For the Grievor

[52]     The grievor's representative's arguments can be summarized as follows. The issues to be determined are: (1) Has the employer proved its case for termination, and (2) Was the termination of employment the appropriate penalty; if not, what is the appropriate penalty?

[53]     The legal principles I should consider are that the burden of proof in termination of employment rests with the employer, the assessment of the credibility of the witnesses (Faryna v. Chorny (supra)) and the lack of consistency exhibited by the PCA on discharges for driver's license suspensions.

[54]     The evidence given by Mr. Bakker lacks credibility and it is his word against the grievor's. Mr. West based his decision in part on Mr. Bakker's statement that the grievor drove a PCA vehicle on July 19, 2000, while his driver's license was suspended. He took Mr. Bakker's statement at face value.

[55]     The employer heard about the grievor's driver's license suspension by way of rumours, in August 2000. The normal course of action would be to suspend the grievor pending an internal investigation. Mr. Bakker should have taken the necessary steps to determine if there was any truth to the rumours, as the employer's liability is a very serious matter.

[56]     In September 2000, the employer confirmed, through its investigation, that the grievor had been suspended from driving for three years; however, it was not until May 1, 2001 that the employer decided to discharge the grievor - eight months after the fact. The delay in administering this decision prejudicially affected other employment opportunities for the grievor. The issue of there being a seasonal lay-off is irrelevant, as the employer is required to deal with these matters in a timely manner.

[57]     When convicted of DUI, the grievor stated he informed his manager, Mr. Freeze, of the suspension of his license. There is no evidence that contradicts this and Mr. Freeze was absent from this hearing.

[58]     The grievor should have informed the employer sooner but Mr. Bakker had threatened his employment. The position of the grievor's representative is that the employer has not met the burden of proof required, as there is no evidence, except for Mr. Bakker's testimony, that the grievor drove a PCA vehicle while his license was suspended. He could perform his duties over the summer, as the evidence shows he did the duties so well that the employer never knew he was suspended from driving. The employer has set a precedent by allowing "Mr. B" to continue to perform his duties without a driver's license.

[59]     The requested remedy in this case is to find the discharge inappropriate, return the grievor to his former position and pay lost wages and benefits that he would have earned had he not been discharged.

[60]     The grievor's representative cited the following from Canadian Labour Arbitration, Third edition, by Messrs. Brown and Beatty: Discipline and Discharge Procedures, (7:2000); Alteration of Grounds, (7:2200) and Burden of Proof, (7:2300). She referred as well to the decisions of the adjudicators in Stapleton (Board file 166-2-9712) and Pleau (Board file 166-2-21170).

Reply

[61]     The grievor's witness, Mr. Chambers, did not corroborate anything; in essence, he testified in cross-examination that he could not recall whether the grievor had shown him a temporary driver's license and, as well, that he believed Mr. Bakker was not lying about the specific dates the grievor had driven a PCA vehicle, as it was three years ago and there might be some confusion with respect to the dates and times.

[62]     Mr. Bakker took the grievor at his word, that his vehicle was impounded and then that he had not paid the insurance. He had no reason to doubt him.

[63]     The decision on whether the grievor should be discharged was ultimately as a result of the employer's meeting with the grievor and his shop steward, Mr. Fitzgerald, on May 1, 2001, prior to the start of the season. These concerns did not arise until the start of the seasonal hiring of the labourers.

[64]     The physical and verbal assaults towards Mr. Bakker are sufficient grounds for the termination of employment. With respect to the question of remedy and reinstatement in the workplace, the employer cannot reinstate employees who engage in this type of behaviour. Mr. Freeze was not called or subpoenaed to attend this hearing; in fact, this is the first time we have heard that the grievor informed him of his driver license suspension.

[65]     "Mr. B"'s circumstances were different; he reported to a different supervisor; he was above board, honest and reported his driver licence's suspension immediately and did not drive a PCA vehicle without a license.

Reasons for Decision

[66]     In this case, the burden of proof rests with the employer and I am of the opinion that it has discharged this burden.

[67]     In the letter of termination dated May 7, 2001 (Exhibit E-4), Mr. West, the Superintendent of KNP, advised the grievor of the reasons for the termination of his employment. Exhibit E-2, the "Government of Yukon Driving Abstract", supports Mr. West's review and investigation regarding the suspension of the grievor's driver license for three years. As well, the grievor admitted during his testimony that on June 23, 2000, he was arrested for DUI. He was issued a temporary driver's license for two weeks; however, he continued to drive his personal vehicle to work every day until August 3, 2000, when Constable Telep arrested him for driving while under suspension. He was convicted on September 14, 2000 of DUI and as a result his license was suspended for one year. According to the grievor's testimony, the Motor Vehicle Board reviewed the grievor's driving record and, because of his August 3, 2000 arrest for driving while under suspension, decided to increase his suspension from one year to three. Therefore, his driver's license will not be reinstated until September 14, 2003.

[68]     The grievor testified he received numerous letters from the Motor Vehicle Board but, because he had sold his vehicle, he thought the letters were registration forms and he threw them into the garbage unopened. The grievor would have me believe that he did not know until the meeting of May 1, 2001, when informed by Mr. West, that his license had been suspended for three years. Even if I were to believe the grievor, and I do not, that he did not know his license was suspended for three years, ignorance of the law is no excuse.

[69]     The second reason in the letter of termination alleges that the grievor's conduct was inappropriate by his failure to inform his supervisor or PCA management about his license suspension. I am satisfied that the grievor's conduct was inappropriate, secretive and deceptive.

[70]     Mr. Bakker testified that it was not until late August that he began to hear rumours of the grievor's license infractions at which time he informed Donna Harriott, in Human Resources. The grievor testified that he did not inform his supervisor because he felt he would be discharged immediately. However, he did inform his co-worker and testified he had also informed Mr. Freeze.

[71]     I find the grievor's testimony in this regard to be self-serving at best and I cannot rely upon it. In any case even if the grievor's employment was terminated by the supervisor, the grievor would have filed a grievance and, in fact, that is exactly what the grievor did on receipt of Mr. West's letter of termination.

[72]     At no point prior to this hearing or at any time during the grievance process did the grievor inform PCA that he had advised Mr. Freeze of the suspension of his driver's license. It seems to me that the grievor would have, at the very least, brought this significant point forward prior to adjudication or subpoenaed Mr. Freeze to establish through examination-in-chief that he and Mr. Freeze had discussed the suspension of his license. It is of particular concern to me that the grievor only mentioned this at the hearing when Mr. Freeze happened to be out of the country. I do not believe the grievor's testimony on this point.

[73]     The third reason in the letter of termination is that a driver's license is a condition of employment and the grievor would be unable to fulfill all the duties of his position for three years. Three years is not a reasonable period of time for the employer to accommodate the grievor.

[74]     Messrs. Bakker and West both testified that the grievor would need a driver's license to fulfill the full range of the duties of his position. Counsel for the employer introduced Exhibit E-1, signed by the grievor, which sets the terms and conditions of employment. Annex "A" b. is very clear when it states:

In order to be appointed to this position, you must possess a valid Class 5 driver's license. You will be required to maintain the validity of this driver's license throughout your employment in this position. You are requested to provide proof of your driver's license on acceptance of this offer.

[Emphasis added]

[75]     The grievor was seasonally laid off on September 8, 2000, convicted on September 14 and his license is to be reinstated on September 14, 2003. I agree with the employer that three years is not a reasonable amount of time for the employer to accommodate a seasonal employee who fails to meet the requirements of his position. The grievor, through his testimony, believes that he does not require a driver's license to perform his daily duties, but he did not introduce evidence to support that supposition.

[76]     I do not subscribe to the grievor's notion that the employer has set a precedent by accommodating "Mr. B" at KNP while his driver's license was suspended. The facts as brought forward indicate that "Mr. B" and the grievor reported to different supervisors; "Mr. B" was forthright and approached management the day after his arrest and showed remorse for his actions. The facts in this case clearly demonstrate that the grievor did not approach his supervisor or senior management about the suspension of his license.

[77]     Mr. West testified that the grievor, at the meeting of May 1, 2001, with his shop steward, Mr. Fitzgerald, showed no remorse and did not appear to appreciate the severity of his actions. I agree with his assessment, as I did not see or hear from the grievor any indication, that he appreciated, that his actions were inappropriate.

[78]     As for reinstatement, I see no reason to mitigate the employer's decision to terminate the grievor's employment. The grievor openly testified that he attempted to bitch-slap his supervisor at the Castaway Bar. It was only Mr. Bakker's reaction to move backwards which prevented an assault rather than an attempt to assault. I wish to advise the grievor that this decision is a public document and may be referred to by others, including law enforcement officials and judges. Reinstating the grievor in the workplace in his former position would, in my view, under the circumstances, be untenable and would poison the workplace.

[79]     Although I believe it to be true that the grievor drove PCA vehicles while his driver's license was under suspension, the fact remains that it does not form part of Mr. West's letter of termination, thus it holds no relevance in the determination of this decision.

[80]     In the determination of this decision, I agree with the employer that the grievor has failed to meet the requirements of possessing and maintaining a Class 5 driver's license, as agreed upon when he signed his terms and conditions of employment with the PCA on October 30, 1998 (Exhibit E-1). Therefore, he would not be able to perform his duties efficiently and effectively. I find that the grievor did not attempt to inform his supervisor or PCA management of the suspension of his driver's license. I also believe that the grievor was not forthright with the employer and it was only through an investigation involving the RCMP and others that the truth was discovered. Finally, I find that it is not unreasonable for the employer to terminate the employment of an employee who lacks a fundamental element, a driver's license, to perform his duties for a period of three years.

[81]     With respect to the employer's delay in the grievor's termination of employment, I agree with the grievor that the delay could have affected his ability to find alternate employment. The employer began its investigation mid-September 2000 and had determined in November 2000 that the grievor's license would not be reinstated until September 14, 2003. The employer, for reasons only known to themselves, waited until May 1, 2001 to meet with the grievor to discuss issues that could affect his employment. It was on May 7, 2001 that the grievor was presented the letter of termination. This represents a delay of nearly six months, which I find unacceptable given the fact that the grievor's expectation was to begin work in early May 2001. Although, I find the employer's actions reprehensible and amateurish at best, nonetheless the grievor did not meet one of the basic requirements of the position, a valid Class 5 driver's license.

[82]     For all of the reasons noted above, this grievance is dismissed.

D.R. Quigley,
Board Member

OTTAWA, April 30, 2003.