Canadian Union of Postal Workers v Canada Post Corporation, 2023 ABKB 333

Court of King’s Bench of Alberta Citation: Canadian Union of Postal Workers v Canada Post Corporation, 2023 ABKB 333 Date: 20230605 Docket: 2201 00031 Registry: Calgary Between: Canadian Union of Postal Workers Applicant - and - Canada Post Corporation Respondent _______________________________________________________ Reasons for Judgment of the Honourable Justice D.B. Nixon _______________________________________________________ I.

INTRODUCTION [ 1 ] This judicial review application concerns an award by an arbitrator under the Collective Agreement between the Canadian Union of Postal Workers (the “ Postal Union ”) and the Canada Post Corporation (the “ Employer ” or “ Canada Post ”). In the subject award, the arbitrator found: (

i) the Postal Union and its member, Mathew Owen, waived the right of Mr. Owen under the Collective Agreement to at least 24 hours advance notice of a disciplinary interview; and (ii) the penalty of termination imposed on Mr. Owen was just in the circumstances.

[ 2 ] The focus of this judicial review concerns a Notice of Interview that was issued under the parameters of the Collective Agreement. To be effective, that agreement requires the Notice of Interview to be received by the Postal Union member 24 hours in advance of the scheduled disciplinary interview (the “ 24-Hour Notice ”). [ 3 ] In an arbitration award dated November 22, 2021 (the “ Arbitration Decision ”), Arbitrator Diane Jones, KC (the “ Arbitrator ”) dismissed the grievance of the Postal Union dated February 5, 2020 (the “ Grievance ”). The Postal Union was seeking reinstatement of Mr.

Owen, who had been dismissed from his employment with Canada Post. [ 4 ] In this judicial review application, the Postal Union seeks an order: (

i) setting aside the Arbitration Decision on the basis that it is not reasonable or justifiable; and (ii) remitting the Grievance for reconsideration. II. Overview [ 5 ] On January 7, 2020, Mr. Owen did not attend work because he was ill. The next day, Canada Post sent an interview notice to Mr. Owen scheduling a disciplinary interview for January 10, 2020, to discuss his absence and his failure to call-in. [ 6 ] The notice for the disciplinary interview was sent to Mr. Owen by registered mail. Mr. Owen alleged that Canada Post used an incorrect address. As a result of the wrong address being used, Mr.

Owen did not receive the notice. [ 7 ] When the Local Area Manager (“ LA Manager ”) for the Banff Office of Canada Post approached Mr. Owen on January 10, 2020, and asked if he was going to attend the meeting for the disciplinary interview, he expressed surprise. He asked, “What meeting?” He declined to attend. [ 8 ] Since Mr. Owen alleged that he had not received proper notice of the disciplinary interview, he asserted he had the right under the applicable Collective Agreement to refuse to attend the meeting.

He also asserted that the LA Manager could not proceed unilaterally and impose discipline. [ 9 ] Notwithstanding the notice issue, the LA Manager insisted the disciplinary interview go ahead. The LA Manager told Mr. Owen that it was in his interest to attend the disciplinary interview. [ 10 ] When Mr. Owen declined to attend the disciplinary interview, the LA Manager asked the local Postal Union representative, Mr. Rutley, to witness Mr. Owen’s refusal. The LA Manager then proceeded unilaterally with the disciplinary hearing. Ultimately, the decision was made to terminate Mr. Owen’s employment. III.

Summary of Facts A. Background [ 11 ] The Collective Agreement between the parties includes comprehensive provisions concerning discipline. These provisions confirm the right of an employee to only be disciplined for just cause, to receive proper notice of disciplinary interviews and the grounds for discipline, and to have a Postal Union representative of their choosing assist them in disciplinary matters. [ 12 ] Interviews are integral to the discipline process contemplated by the Collective Agreement. Recognizing this fact, the parties have agreed to strict terms in respect of interviews. The relevant clause reads as follows. (

a) The Corporation agrees to notify an employee twenty-four (24) hours in advance of any interview of a disciplinary nature or related to his or her attendance record and to indicate: (

i) his or her right to be accompanied by a Union representative as specified in clause 10.06; (ii) the purpose of the meeting, including whether it involves the employee’s personal file; (iii) that if the employee’s personal file is to be considered during the interview, the employee and/or his or her Union representative, the latter with the employee’s permission, shall, before the meeting, have access to this file in accordance with clause 10.03. (

b) The employee has the right to refuse to participate or to continue to participate in such interview unless he or she has received the notice hereinabove provided for. (

c) If the employee fails to appear at the interview and does not explain his or her inability to do so, the Corporation shall proceed unilaterally:

Article 10.04 of the Collective Agreement . [ 13 ] The above provisions have been included in the Collective Agreement unchanged for decades: Re Canada Post Corporation and Canadian Union of Postal Workers (Pearce) (1986), 2 CLAS 124, 1986 CarswellNat 1683, para 4 (WL) (Arbitrator: Pamela C. Picher) [ Pearce ]). During that time period, consistent arbitral jurisprudence has developed interpreting and applying

Article 10.04 of the Collective Agreement. [ 14 ] The parties have expressly agreed to be bound by that arbitral jurisprudence:

Article 9.103 of the Collective Agreement. [ 15 ] The Postal Union filed the Grievance on behalf of Mr. Owen. In the Grievance, the Postal Union asserted the Employer breached Articles 5 and 10 of the Collective Agreement and improperly terminated Mr. Owen. [ 16 ] About a year before the January 8, 2020 interview, notice on another matter concerning Mr. Owen was sent to the incorrect address. Mr. Owen had told Canada Post at that time that the mailing address the Employer had on file for him was incorrect. Despite

being informed of the correct address for Mr. Owen, the Employer continued to address notices and correspondence to him using an incorrect address. [ 17 ] On November 12, 2019, Mr. Owen reiterated to Ms. Skelding of Canada Post that the address the Employer was using for him was incorrect. Ms. Skelding asked Mr. Owen to update his contact information in Canada Post’s system. He followed that request and updated his contact information more than a month before the January 8, 2020 interview notice was issued. [ 18 ] Notwithstanding that Mr.

Owen updated his contact address by late 2019, the January 8, 2020 interview notice scheduling the January 10, 2020 interview was sent to the incorrect address. Based on that information, I infer that Mr. Owen did not receive any notice that an interview was going to be held on January 10, 2020. [ 19 ] As I mentioned above, when the LA Manager approached Mr. Owen at work on January 10, 2020, and asked him if he was going to attend the meeting concerning the disciplinary interview, he expressed surprise. When Mr.

Owen asked, “What meeting”, I infer that the LA Manager understood the interview notice had not made it to Mr. Owen’s attention. [ 20 ] The LA Manager indicated to Mr. Owen that she would proceed unilaterally if he did not attend the meeting concerning the disciplinary interview. As mentioned above, the LA Manager asked Mr. Rutley to witness the refusal of Mr. Owen to attend the disciplinary interview. B. The Arbitration Decision [ 21 ] Relying on the numerous awards between the parties interpreting and applying

Article 10.04, the Postal Union asserted before the Arbitrator that the Employer breached

Article 10.04 of the Collective Agreement. The Postal Union further asserted that the discipline imposed on Mr. Owen was void. [ 22 ] The Postal Union asserted the discipline was void because Mr. Owen did not receive the required 24-Hour Notice of the interview that had been scheduled for January 10, 2020. The deficiency occurred because the notice was sent to the wrong address. Having not received proper notice, Mr. Owen asserted that he was entitled to refuse to participate in the interview.

Having failed to provide the required notice, the Postal Union asserted that the LA Manager was not entitled to proceed unilaterally and impose discipline. [ 23 ] The only response that Mr. Owen provided to the LA Manager at the time she indicated she would proceed unilaterally was the comment, “yep as usual”. [ 24 ] It was the position of Canada Post that to establish waiver the relevant question was not whether Mr. Owen had unequivocally waived his right to the notice but what the LA Manager knew or ought to have known.

Canada Post suggested the LA Manager had no reason to believe anything was amiss. [ 25 ] As I understand its argument, Canada Post was asserting this for two reasons. First, Mr. Owen had on occasion declined to participate in other meetings for which notice had been properly delivered. Second, since Mr. Owen and Mr. Rutley did not advise the LA Manager that she could not proceed unilaterally, she concluded that she was entitled to do so. [ 26 ] The threshold issue before the Arbitrator was whether the rights of Mr. Owen under

Article 10.04 of the Collective Agreement were breached. If they were breached, this would render the discipline imposed on him void. [ 27 ] In addressing this issue, the Arbitrator accepted that the January 8, 2020 interview notice was sent to the wrong address: Arbitration Decision at 38. By doing so, she implicitly found that Mr. Owen did not receive the required notice. [ 28 ] However, the Arbitrator asserted that Mr.

Owen and the Postal Union waived the right of the employee to proper notice by not objecting when she “advised that she was proceeding unilaterally [with the disciplinary interview] and following through with the process”. IV. The Issues [ 29 ] At first glance, there are many issues underlying this judicial review. The issues are multiplied because the parties have different views as to the nature of the issues. A. Postal Union (Applicant) – Framing the Issues [ 30 ] The Postal Union frames the issues in two questions. First, is the finding of the Arbitrator to the effect that Mr.

Owen and the Postal Union waived Mr. Owen’s right to proper notice justified or justifiable having regard to the facts and law? Second, did the Arbitrator fail to meaningfully address the argument of the Postal Union that termination was excessive? B. Canada Post (Respondent) – Framing the Issues [ 31 ] The Respondent frames the issues in three questions. First, what is the applicable standard of review with respect to the Arbitration Decision? Second, was the Arbitrator’s finding that Mr. Owen had waived his rights under

Article 10.04 of the Collective Agreement within the range of possible, acceptable outcomes? Third, based on the circumstances, was the Arbitrator’s finding that dismissal was warranted in the circumstances within the range of possible acceptable outcomes?

C. The Court – Framing the Issues [ 32 ] Notwithstanding the above positions, I frame the threshold issues as follows. 1. Did the Arbitrator reasonably interpret the notice requirement? 2. Did Mr. Owen waive the notice requirement? 3. If notice was required under

Article 10.04 and it was not waived, do I need to consider anything further? V. Standard of Review [ 33 ] The reasonableness standard of review applies to a labour arbitrator’s

interpretation and application of a collective agreement: Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd , 2013 SCC 34 at para 7 . The burden is on the Postal Union to show that the Arbitration Decision was unreasonable: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at para 100 . [ 34 ] A reasonableness review entails a sensitive and respectful, but robust, evaluation: Vavilov at para 12 .

The review process is not a rubber stamp: Vavilov at para 13 . [ 35 ] In applying the reasonableness standard, the law generally directs that I am to consider both the outcome of the decision and the reasoning process. Further, I am typically directed to “ask... whether the decision bears the hallmarks of reasonableness - justification, transparency and intelligibility - and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”: Vavilov at para 99 .

To be reasonable, a decision must be “based on an internally coherent and rational chain of analysis” and it must also be “justified in relation to the facts and law”: Vavilov at para 85 and see also paras 101-105, 127. Some of the elements to consider include “the governing statutory scheme; other relevant statutory or common law; the principles of statutory

interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies”: Vavilov at para 106 . [ 36 ] The decisions of labour arbitrators are typically owed significant deference on review in regard to their legal and factual findings when interpreting the terms of a collective agreement: Irving Pulp at para 16; see also Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 at para 17 ; and Vavilov at paras 92-93 .

VI. Analysis [ 37 ] Relying on numerous arbitration awards interpreting and applying the Collective Agreement, the primary argument of the Postal Union before the Arbitrator was that the right of Mr. Owen to proper notice had been breached. Due to that breach, the Postal Union asserted the discipline imposed on Mr. Owen was void. [ 38 ] The Postal Union also argued the penalty imposed on Mr. Owen was unjust. It asserted this argument before the Arbitrator on the basis that the complete context supported this conclusion, including the medical condition of Mr.

Owen, the unnecessary and insensitive rules of the Employer in respect to absence reporting as applied to Mr. Owen, and the legitimate privacy concerns of Mr. Owen. [ 39 ] Notwithstanding the assertions of the Postal Union, the Arbitrator found in favour of Canada Post. In this judicial review, the Postal Union submits the Arbitration Decision ought to be set aside as unreasonable because it is not justified or justifiable in relation to the facts and law and it fails to meaningfully account for the core issues raised. A. Arbitration Awards – The Legal Framework [ 40 ] Arbitration awards interpreting and applying

Article 10.04 of the Collective Agreement have held as follows. a. An employee’s right to proper notice of an interview is substantive and essential to the effective exercise of other important Collective Agreement rights such as the right to Postal Union representation of the employee’s choice: Pearce at paras 30, 37; Re Canada Post Corporation and Canadian Union of Postal Workers ( Bergeron ) (1990), 17 CLAS 10, 1990 CarswellNat 1776, para 58 (WL) (Arbitrator: Richard B. Bird) [ Bergeron ]). b.

The obligations imposed on the employer in respect to the interview notice are mandatory: Pearce at para 30; Re Canada Post Corporation and Canadian Union of Postal Workers (Bond) , 1987 CarswellNS 759, paras 21 , 23 (WL) (Arbitrator: Bruce Outhouse) [ Bond ]; Canada Post Corporation v Canadian Union of Postal Workers (1988), 2 LAC (4 th ) 396, 1988 CarswellNat 869, para 22 (WL) (Arbitrator: Kenneth P. Swan) [ Levy ].

c. When the employer initiates the interview process, the employer “must go down that path from start to finish; and it must do soproperly and in full compliance with

Article 10.04”: Light v Canada Post Corporation and Canadian Union of Postal Workers (1997),1997 CLAD No 147 (Arbitrator: D R Munroe, KC) [Light]; and see: Levy at paras 22-23; Re Canada Post Corporation and CanadianUnion of Postal Workers (Pearce) (1990), 17 CLAS 86, 1990 CarswellNat 2263 at para 22 (WL) (Arbitrator: Brian Langille) [PearceNo. 2]). d.

If the employer issues a defective notice, the employee has the right to refuse to participate in the interview, and the employercannot proceed unilaterally: Re Canada Post Corporation and Canadian Union of Postal Workers (Gibson) (1987), (CA LA), 27 LAC (3d) 27, 39-40, (Arbitrator: Kenneth P. Swan) [Gibson]; Bergeron at paras 60, 62; Pearce No. 2 atpara 22). e. Since the right to proper notice is substantive and mandatory, and because the employee has the right not to participate in aninterview if the notice is defective, noncompliance with

Article 10.04(

a) will usually render any subsequently imposed discipline void:Pearce at para 37; Levy at para 23; Gibson at pp 40, 42; Bergeron at para 62; Pearce No. 2 at para 23; and see also Bond at para 37;Light at p 446. f. Although the usual remedy for a breach of

Article 10.04(

a) of the Collective Agreement is to void any discipline imposed, if anemployee fully participates in a disciplinary interview aided by their Postal Union representative despite a defective notice, the employeemay be taken to have waived their right to proper notice and, in that case, there will be no reason to nullify the discipline due to thedefective notice: Bond at para 21; Light at p 448; and see also Pearce No. 2 at paras 17, 22. B. Applying the Law to the Facts 1. Did the Arbitrator reasonably interpret the notice requirement? [41] Whether Mr.

Owen received advance notice of the disciplinary meeting is a critical issue in the context of this application.While the parties seem to have had differing views on whether Mr. Owen received the 24-Hour Notice on a timely basis, that issue wasaddressed by the Arbitrator. Importantly, the Arbitrator accepted that the 24-Hour Notice went to the wrong address: ArbitrationDecision at 38. [42] The LA Manager was questioned in detail about the letters sent and filed. This questioning focused on the address changesreported by Mr.

Owen, tracking numbers of the correspondence, and letters returned because of invalid addresses: Arbitration Decisionat 15. In the context of that questioning, the LA Manager confirmed the following: a. On November 25, 2019, the address of Mr. Owen was changed to the correct address: Arbitration Decision at 15. b. On November 15, 2019, Lindsay Skelding sent a letter to Mr. Owen at his correct address: Arbitration Decision at 15. c. On January 8, 2020, the LA Manager sent the 24-Hour Letter to Mr. Owen at his former address, which was no longer valid:Arbitration Decision at 15.

The 24-Hour Letter contained the Notice of Interview which was to alert Mr. Owen that he was to beinterviewed on January 10, 2020. d. On January 17, 2020, the LA Manager sent the letter of termination to Mr. Owen at his correct address: Arbitration Decision at 15. [43] During the Arbitration, Mr. Owen testified that he: (

i) did not receive this 24-Hour Notice; and (ii) had not lived at, I infer, hisformer address for eight or nine months: Arbitration Decision at 24. His evidence also was that he had changed the addresselectronically and had informed the LA Manager in person: Arbitration Decision at 24. [44] Ms. Rusnak was Senior Counsel for Canada Post. She challenged Mr. Owen that he had not said in direct examination that the24-Hour Notice had been mailed to the wrong address: Arbitration Decision at 38. While that may have been the case, he stated in cross-examination that he was saying it now: Arbitration Decision at 29.

As I noted above, the Arbitrator accepted that the 24-Hour Noticewent to the wrong address: Arbitration Decision at 38. [45] Based on my review of the evidence, Canada Post concedes that Mr. Owen did not receive the required notice. The evidenceis that the notice was sent to the wrong address. [46] Since Mr. Owen did not receive the notice, he was caught unaware when the LA Manager asked him to attend the disciplinaryinterview.

I infer the reason for the notice requirement in the Collective Agreement is because the Postal Union wants to ensure that anemployee always has the opportunity to review the situation, retain counsel or Postal Union support, and prepare for the disciplinaryinterview. In essence, it is a codification of a procedural fairness requirement. In this case, Mr. Owen was not provided with theprerequisite 24-Hour Notice period.

[ 47 ] There has been some debate in the arbitral jurisprudence about whether the right protected by

Article 10.04 of the Collective Agreement is procedural or substantive: Light at 446. This does not need to be determined in the present judicial review. What is clear is that the purpose of this

section is not solely to inform an individual that a disciplinary interview has been scheduled, but also to provide an opportunity, as describe above, for that individual to prepare and discuss matters before that disciplinary interview takes place. [ 48 ] Upon realising that Mr. Owen had not seen the notice, the LA Manager printed a copy of the notice to show him and repeatedly told him that it was in his best interest to attend the meeting. She remained at the Banff office until the end of Mr. Owen’s shift in case he changed his mind. Although this may well have been well intentioned by the LA Manager, it has no bearing on the purpose of

Article 10.04 of the Collective Agreement and cannot reasonably be seen as a substitute for the required notice. [ 49 ] The Collective Agreement is binding on both parties and the language of

Article 10.04 of the Collective Agreement is clear. Once it was determined that Mr. Owen had not received the notice, he was not required to attend the meeting and was not required to justify why he would not appear. Given these particulars, I find the Arbitrator unreasonably interpreted the notice requirement. I also find that Mr. Owen and the Postal Union met their burden in respect of the question as framed above. [ 50 ] As a result, any subsequent determination by the LA Manager is void, unless Mr. Owen waived the notice requirement. 2. Did Mr.

Owen waive the notice requirement? [ 51 ] In her arguments on behalf of Canada Post, Ms. Rusnak asserted during the Grievance that the Postal Union waived its right to rely on the 24-Hour Notice: Arbitration Decision at 4. [ 52 ] To properly assess the Canada Post arguments on this point, I reviewed the particulars. Mr. Rutley said he did not remember a discussion with the LA Manager subsequent to being asked to be a witness for the Postal Union.

Further, he testified that he never agreed to waive the 24-Hour Notice requirement: Arbitration Decision at 8. [ 53 ] Notwithstanding the above facts, Canada Post asserted that it was entitled to proceed unilaterally with the disciplinary interview because neither Mr. Owen nor the Postal Union objected to the LA Manager proceeding unilaterally. As a result, Canada Post asserts that the ability to claim a violation of

Article 10.04 of the Collective Agreement was waived. To support this position, Canada Post cited case law, as well as evidence from Mr. Rutley, the LA Manager and Mr. Owen. In particular, Ms. Rusnak relied on the Light decision by Arbitrator Munroe which reviewed the jurisprudence. Respectfully, I disagree. [ 54 ] In my view, the Light case concluded that while

Article 10.04 rights can be waived, there must be conduct or words that manifest the intent to waive rights: Light at 446. Arbitrator Munroe found that “The issue of waiver is one of mixed fact and law. That being so, it is unlikely that any two cases will be exactly the same. One must therefore proceed by reference to principle; by drawing assistance by analogy from such other cases as may be helpful; and the final analysis by making a judgment as to the reasonable conclusion in the instant case”: Light at 448. [ 55 ] In my view, this case has no similarity to other arbitral decisions where waiver was found.

As highlighted in Light , those cases have involved the member sitting in on the disciplinary interview. In particular in Light , “the grievor virtually insisted on making a clean breast of it”: at 448. [ 56 ] Ms. Rusnak also referred to two other significant factors in her effort to establish waiver. First, the failure by the Postal Union to communicate an objection: see Facchini v Canada Post Corporation and Canadian Union of Postal Workers (31 May 1990); Nixon v Canada Post Corporation (30 June 1993).

Second, the alleged fresh steps taken by the Postal Union, such as filing a grievance that does not refer to such objection: Rose v Canada Post Corporation (5 December 2005); and Arbitration Decision at 32. [ 57 ] Mr. Rutley acknowledged that it was the LA Manager who asked him to be a witness. He said he never told the LA Manager to reschedule the interview because he had never seen the 24-Hour Notice. Further, he was not aware of anything other than the fact that Mr. Owen did not attend the interview. Mr. Owen never asked him to have the interview rescheduled. [ 58 ] I reiterate, Mr.

Rutley said he did not remember a discussion with the LA Manager after being asked to be a witness, he never had any discussions with respect to re-issuing the notice, and he never agreed to waive the 24-Hour Notice requirement: Arbitration Decision at 8. In redirect, Mr. Rutley confirmed he did not ask to see the January 10th 24 Hour Notice and he never told the LA Manager that he could not represent Mr. Owen. Mr. Rutley further confirmed his direct evidence that he was called over by the LA Manager as a Postal Union representative to see that Mr.

Owen was refusing to attend the meeting: Arbitration Decision at 9. [ 59 ] I acknowledge that the LA Manager testified that she offered to show Mr. Owen the 24-Hour Notice because he had asked “What meeting” and that he had said “no” to his attendance at the meeting: Arbitration Decision at 12. While the LA Manager took that step, in my view it is not relevant to the critical issue. [ 60 ] The LA Manager was referred to Ms. Skelding’s November 15, 2019 correspondence where Mr. Owen said the only issue was that the address of the letter was wrong. While the LA Manager noted that Mr.

Owen did attend the November 15, 2019 interview, I find her evidence on that point irrelevant to the issue before me. The relevant evidence is the fact that the LA Manager acknowledged that Mr. Owen’s address was changed to the correct address within the Canada Post system on November 25, 2019.

Notwithstanding the amendment to his mailing address within the Canada Post system, the 24-Hour Notice issued on January 8, 2020 went to the old (incorrect) address, while the termination letter dated January 17, 2020 was mailed to the new (correct) address: Arbitration Decision at 14 and 15. [ 61 ] Notwithstanding that Mr. Owen did not receive proper notice, I reiterate Canada Post argued that Mr. Owen and the Postal Union waived the right to proper notice. Canada Post asserts that waiver occurred when the LA Manager warned Mr. Owen and Mr.

Rutley that she would be proceeding unilaterally in circumstances where neither Mr. Owen nor Mr. Rutley clearly objected at the time to the LA Manager’s assertion that she was going to so proceed with the disciplinary interview.

[ 62 ] The right of the employee to proper notice is of such fundamental importance to the effective realization of the other rights, including the right to representation, that compliance with

Article 10.04 of the Collective Agreement is mandatory. Non-compliance with that prerequisite renders the discipline void. [ 63 ] In other cases, this Court has confirmed a waiver must be “fully informed and unequivocally made”: Alberta v AUPE, 2009 ABQB 208 at para 53 ; affirmed on appeal at Alberta v AUPE , 2010 ABCA 216 [ AUPE 2009 ].

In AUPE 2009 , the Court found an arbitration decision which concluded the grievor had waived her collective agreement right to notice of a disciplinary meeting was unreasonable: paras 39, 43, 59. [ 64 ] On judicial review, the Court found the arbitration decision was indefensible: AUPE 2009 at para 39. It was clear the grievor had no advance notice of the meeting, was unable to select and consult with the union representative of her choice, and could not properly prepare for the meeting.

As a result, the employer in AUPE 2009 had clearly violated the parties’ collective agreement and the grievor was deprived of her rights. [ 65 ] The Court in AUPE 2009 found the arbitration board’s conclusion that the presence of the union representative cured the defect was not supportable. There was no basis to conclude the grievor had waived her rights and it was “purely speculative”. [ 66 ] Ultimately the Arbitrator determined that she was satisfied that despite the 24-Hour Notice being sent to the wrong address, the Employer’s failure in that regard was effectively waived by Mr.

Owen and the Postal Union when neither objected to the LA Manager proceeding unilaterally with the meeting on January 10, 2020. The Arbitrator further noted that no objection was made in the Grievance itself and by taking a “fresh step” she considered it to be another factor in establishing a waiver of

Article 10.04(

b) of the Collective Agreement: Arbitration Decision at 38. With respect, I disagree with the determination of the Arbitrator concerning the issue of waiver, and consider it unreasonable in light of the facts and legal framework. [ 67 ] My reasons for disagreeing with the Arbitrator are three-fold. [ 68 ] First, in my view the fact that neither Mr. Owen nor the Postal Union objected to the LA Manager proceeding unilaterally with the meeting does not constitute a waiver by itself.

Indeed, based on my review of the evidence, the Postal Union was not aware immediately before the subject meeting that the 24-Hour Notice had been sent to the wrong address such that the document would not have been delivered to Mr. Owen on a timely basis, or at all. Since the Postal Union did not have that knowledge at that time, it was not in a position to object. That is, a person cannot object to something of which they are unaware. [ 69 ] Similarly, based on my review of the evidence, it is not apparent that Mr.

Owen was aware immediately before the subject meeting that the 24-Hour Notice had been sent to the wrong address. That said, he was categoric that he had not received the 24-Hour Notice. This is evidenced by the fact that he asked, “What meeting?” Given these circumstances, I find he was not in a position to object. [ 70 ] Second, the suggestion by the Arbitrator that no objection was made during the Grievance itself is without merit. I make that determination because the evidence indicates that an objection was raised during the Grievance process.

Indeed, the Arbitrator acknowledged explicitly that a second technical objection was raised by the Postal Union to the Notice of Interview for January 10, 2020: Arbitration Decision at 4. In her efforts to address this matter, Ms. Rusnak asserted that if the Postal Union established a technical breach, it waived its right to rely on it. It is not clear how it can be taken that the Postal Union had waived its right to argue this breach when, as discussed, this was sprung on both Mr. Owen and the Postal Union without the time to actually engage with what is being asked here.

As discussed above, the Collective Agreement and the requirements under

Article 10.04 apply to both parties. [ 71 ] Third, it was found by the Arbitrator that raising this objection was a “fresh step” by the Postal Union. Respectfully, it is illogical to have called that action a “fresh step” when the grievance as set out in the Arbitration Decision acknowledges that this is an

Article 10 issue. The Arbitrator does not elaborate on what aspect of this was a “fresh step” and it is difficult to glean from the reasons what led to this conclusion: see Arbitration Decision at 38. [ 72 ] In this case, it was unreasonable for the LA Manager to conclude a waiver occurred. When the LA Manager approached Mr. Owen on January 10, 2020 and asked him if he was going to attend the disciplinary interview she had scheduled for that day, Mr. Owen responded “What meeting”. This should have signaled to the LA Manager that Mr. Owen did not receive the interview notice. In my view, the fact that Mr.

Owen responded to the LA Manager saying she would proceed without him with “yup as usual” does not hint at waiver. [ 73 ] In my view, if the notice is defective the employee does not need a good reason for not attending the disciplinary interview. Indeed, the employee has the right not to participate. If the employee does not participate in the interview, the employer cannot proceed unilaterally with the process. This is clear in

Article 10.04(

b) of the Collective Agreement and has been consistently found in previous arbitration awards. [ 74 ] In this case, the LA Manager supported her finding that Mr. Owen waived his rights by noting Mr. Owen’s refusal was “consistent with his prior behaviour”. By doing so, she implied that his refusal to participate in the disciplinary interview was unrelated to the defective notice. [ 75 ] In my view, Mr. Owen’s prior behaviour was not relevant to the question before the Arbitrator. The relevant question for the Arbitrator to address was not whether Mr.

Owen would have attended the interview had he received the proper notice but whether Mr. Owen, having not received proper notice, unequivocally waived his right to such notice, allowing her to unilaterally proceed. [ 76 ] The LA Manager’s comments in respect of the past behaviour of Mr. Owen were speculative. I make that determination because, in my view, those comments were not supported by the evidence. As a result, it was unreasonable and illogical for the LA Manager to conclude Mr. Owen would not have attended the January l0, 2020 interview based on his past behaviour.

As mentioned above, the Collective Agreement is binding on both parties, and it was incumbent on the LA Manager to determine if Mr. Owen was truly waiving his right to notice.

[ 77 ] In Calgary Co-operative Association v Union of Calgary Co-Op Employees , the employer had similarly argued the union had waived a collective agreement requirement which obliged the employer to convene an investigation meeting before disciplining an employee: (2012), 220 LAC (4th) 329, 2012 CarswellAlta 941 at para 55 (WL) (Arbitrator: Allen Ponak).

The employer submitted waiver was established by the union not requesting an investigation meeting despite knowing the employer was going to proceed with discipline and by the union not specifically referencing the relevant collective agreement provision in the grievance filed after the grievor’s termination: at para 55. [ 78 ] In dismissing the employer’s argument in Calgary Co-operative Association , the arbitrator commented that substantive collective agreement requirements cannot be waived by “mere silence or lack of opposition to a course of action”.

In effect, the arbitrator in that case was making it clear that waiver “must be explicit and fully informed”: para 94; see also Donald J.M. Brown, David M. Beatty, and Adam J. Beatty, Canadian Labour Arbitration , 5th ed, looseleaf (Toronto: Thomson Reuters Canada Ltd, 2022) at para 2:63 (WL). [ 79 ] Based on my review of the evidence and analysis of the law, I find the determination of the Arbitrator to the effect that Mr. Owen and the Postal Union waived the employee’s

Article 10.04 right to proper notice to be untenable. Given the above particulars, I also find Mr. Owen and the Postal Union met their burden in respect of the question as framed above. 3. If notice was required under

Article 10.04 and it was not waived, do I need to consider anything further? [ 80 ] Given the above determination that the Arbitrator’s finding was unreasonable and that Mr. Owen did not waive the notice requirement, I do not need to consider anything further other than to state that the discipline imposed on Mr. Owen in the form of termination was void. VII. Conclusions [ 81 ] The threshold issues and my related findings are as follows. a. Did the Arbitrator reasonably interpret the notice requirement?

Based on the evidence before me and my analysis of the law, I find that the Arbitrator did not reasonably interpret the notice requirement. b. Did Mr. Owen waive the notice requirement? Based on the evidence before me and my analysis of the law, I find that Mr. Owen did not waive the notice requirement, and it was unreasonable for the Arbitrator to find that he did. c. If notice was required under

Article 10.04 and it was not waived, do I need to consider anything further? No, other than to reiterate that the discipline imposed on Mr. Owen in the form of termination was void. [ 82 ] Given my determinations above, I order as follows: a. The Arbitration Decision is set aside. b. The Grievance is remitted for reconsideration. VIII. Costs [ 83 ] The parties may speak to costs if they cannot otherwise agree. Heard on the 10 th day of February, 2023. Dated at the City of Calgary, Alberta this 5 th day of June, 2023. D.B. Nixon J.C.K.B.A.

Appearances: Drew Blaikie and Michelle Westgeest for the Applicant M. Jean Torrens and Samantha N. Finkbeiner for the Respondent