AH - 174

 

 

 

IN THE MATTER OF AN ARBITRATION

 

 

BETWEEN:

 

 

CANADIAN PACIFIC LIMITED

 

(the “Company”)

 

 

AND

 

 

THE CANADIAN PACIFIC POLICE ASSOCIATION

 

(the “Union”)

 

 

IN THE MATTER OF THE GRIEVANCE AND APPEAL OF RONALD A. STEPHENS

 

 

 

 

SOLE ARBITRATOR:     George W. Adams

 

 

There appeared on behalf of the Company:

                                D.W. Flicker

 

 

And on behalf of the Union:

                                A.M. Minsky

 

 

A hearing in this matter was held at Toronto, Ontario, on the 23rd day of May, 1979.

AWARD

 

                The grievor, Sergeant Ronald A. Stephens, grieves both a suspension without pay imposed upon him December 1, 1978 and his subsequent dismissal from the employ of Canadian Pacific Limited, Department of Investigation (hereinafter called “the employer”), effective February 13, 1979.

 

                The grievor has been continuously employed by the employer in its Department of Investigation since August 1, 1957.  On or about December 1, 1974 the grievor was promoted from constable to sergeant.  The grievor is now sixty (60) years of age.  It is to be noted that since the grievor’s release from the R.A.F., he has been engaged in police work.  He was employed by the Portsmouth Police Department, Portsmouth, England from `1946 until his employment with the employer in 1957.

 

                On December 1, 1978 the grievor was arrested and charged with theft under $200.00, namely, for theft of a skipping rope valued at $11.98 from a Collegiate Sports store in the Municipality of Metropolitan Toronto.  At the time and place in question, the grievor was not on duty or otherwise performing any of the duties of his employment.

 

                On December 1st, 1978, the employer suspended the grievor without pay.  The reasons for such suspension were confirmed by letter dated December 7th, 1978, whereby the employer stated that the grievor was suspended,

 

“because of conduct unbecoming a member of this Department in that you allegedly were arrested on December 1, 1978, and arraigned on a charge of theft under the value of $200.00 by Toronto Metropolitan Police.”

 

                On December 14th, 1978, the grievor filed a grievance against the said suspension without pay in accordance with the collective agreement between the association and the employer.

 

                On January 31st, 1979, the grievor was tried on the said charge in the Provincial Court (Criminal Division) for the Judicial District of York.  The grievor pleaded not guilty.  The grievor was found guilty, but was not convicted of the offense inasmuch as he was given an absolute discharge, without conditions, pursuant to the Criminal Code.

 

                Subsequent to a disciplinary hearing which was held on February 9th, 1979, by letter dated February 13th, 1979, the employer discharged the grievor from its employment, and on February 19th, 1979 an appeal was filed from the said discharge in accordance with the collective agreement.

 

                The grievor is married and has one child living at home, but who is employed.  Representatives of the employer testified in cross-examination that the grievor was an above average employee in the performance of his duties and that, save for an incident pertaining to the 1959 Grey Cup, the grievor’s record was unblemished.  Indeed, the verbal reprimand of 1959 was, in the same year, accompanied by a commendation for the apprehension of a criminal.  There can also be no doubt that, given the age of the grievor and his circumstances, the discharge has meant real economic hardship to him and his family.  Problems of the kind that tend to plague the older worker were set out in Phillips Cables Ltd. (1974), 6 L.A.C. (2d) 35 (Adams).

 

                While it is not too important to be precise in all the powers of employees employed in the same capacity as the grievor, it should be observed that the grievor was appointed as a constable under The Railway Act, R.S.C 1970, C.R-2 and he took an oath of office under section 2 of The Canadian Criminal Code and he, like all other persons similarly employed in the Province of Ontario, was appointed as a special constable pursuant to The Police Act, R.S.O. 1970, c.351 as amended.  The Manual of Instruction for the Department of Investigation promulgated by the employer, familiar to all its railway constables but not incorporated into the collective agreement, sets out at page 22 the following general standard of conduct relevant to the case at bar:

 

GENERAL RULES OF THE COMPANY AND THE DEPARTMENT

 

A           The manner in which members of the Department deport themselves, whether on duty or not, is a subject to which public observation is continually directed.  The manners and behaviour of a member are frequently regarded as characteristic of the entire Department to which he is attached.  Members of this Department must be of clean character and live respectable lives.  Persons of loose character are not wanted and will not be retained.

 

                The duties and responsibilities of the grievor included the instruction of trainees and the supervision of constables.  Employer representatives testified that the grievor and others so employed are responsible for the security of property left in the care of the employer, that such property often is quite valuable, and that the grievor often performed such duties unaccompanied.

 

                Deputy Chief, George H. Legault testified.  It was his decision to discharge the grievor.  He said he could not conceive retaining an officer whose oath of office is to uphold the laws of he county and who commits the unlawful act of shoplifting.  He was of the view that to have retained the grievor would have undermined the credibility of the employer’s police force.  In his opinion. The grievor’s predicament had already undermined his own personal credibility as a police constable rendering any continued service ineffective.  He testified that the Department of Investigation was an “accredited police department” and that it liased with other police departments across Canada.  He suggested that the grievor’s continued employment would have embarrassed the employer’s police force in its contact with other police departments.  He also suggested that each time something disappeared the grievor would be a prime suspect if his association with the Department continued.  He further testified that there were times when a person such as the grievor was called on to testify in a case and the grievor’s contact with the law could undermine his effectiveness in such proceedings.

 

                On a cross- examination, Deputy Chief Legault testified that in dismissing the grievor he had not taken into account his past service and record of performance with the employer.  In his view, the circumstances involved serious misconduct unbecoming an officer and no account could be taken of his employment record.

 

                Other evidence, admitted under reserve as to its relevance, pertained to an earlier incident in the month of November, 1978 when it was reported to the employer that the grievor had walked out of a Canadian Tire store with a pocket radio and without paying for it.  However, the officials of that store and representatives of the Metropolitan Toronto Police Department accepted the grievor’s explanation that he had simply forgotten to pay for it and no charges were proffered.

 

                As for the grievor’s criminal trial in January, 1979, he testified that, on the advice of his lawyer, he did not give evidence and that his case was rested on the technical defense of the Crown’s failure to prove ownership of the goods in question.  He said he had wanted to testify because he had not intended to convert the goods.  It was his evidence before this arbitrator that he had been shopping for a children’s party.  He picked out a skipping rope, but in order to facilitate his inspection of some other merchandise, he put the rope in the parks he was wearing and, subsequently, left the store forgetting to pay.

 

                On cross-examination of the employer’s witnesses, it was establi8shed that other constables had been convicted of impaired driving; that driving was an important duty of a constable; and that such persons had been retained in the employ of the employer.  However, Deputy Chief Legault and others explained that these offenses did not involve honesty and, therefore, did not constitute the same problem to the employer.

 

                Finally, relating to the initial suspension, by letter dated January 8, 1979, the Canadian Pacific Police Association over the signature of Matthew Martin, wrote to the employer requesting that the grievor be provided employment pending the outcome of this judicial trial.  This is a step demanded by the arbitral jurisprudence and is reviewed in Phillips Cables Ltd. (1974), 5 L.A.C. (2d) 274 (Adams) and cited with approval in Dominion Stores Ltd. (1974, 6 L.A.C. (2d) 373 (Johnston) and Treasury Board (1974), 6 L.A.C. (sd) 400 (Simmons).  The employer refused this request by letter dated January 24, 1979 stating that the grievor’s current status precluded implementation of any one of the Association’s suggestions.  One of these suggestions included the possibility of the grievor being given a position “elsewhere in the Company’s services” should his interim employment as constable not be acceptable.  Relevant to the issue of the interim treatment of the grievor is article 10.04 of the agreement which provides:

 

10.04    A decision shall be rendered within fifteen working days from the date of the hearing.  Pending the rendering of such decision, the employee will be held out of service only where the circumstances are considered sufficiently serious to warrant such action.  The employee will be furnished with a copy of the decision in writing.

 

 

DECISION

 

                By telex dated June 13, 1979 I directed that the grievor be reinstated to the position of constable with reasons and all further directions to follow.

 

                At the outset, the powers of an arbitrator under The Canada Labour Code R.S.C. 1970, c.L-1 as amended, section 157 (d) must be kept in mind.  This subsection reads:

 

157.   An arbitrator or arbitration board

(d)          where

(i)            he or it determines that an employee has been discharged or disciplined by an employer for cause, and

(ii)           the collective agreement does not contain a specific penalty for the infraction that is the subject of the arbitration,

 

has power to substitute for discharge or discipline such other penalty as to the arbitrator or arbitration board seems just and reasonable in the circumstances.

 

                I am confronted, essentially, with two grievances.  One pertaining to the grievor’s initial suspension and the second at his ultimate dismissal.

 

                Article 10.04, set out above, is relevant to the first grievance - the issue being whether the circumstances as of December 1, 1978 were reasonably considered sufficiently serious to warrant holding the grievor out of service and denying him pay.  Article 10 sets out a procedure to be followed by the parties postponed the hearing until after the grievor’s case was considered in the courts.  Given the wording of article 10.04, I am of the opinion that the parties intended the employer to exercise its consideration on the facts in a reasonable manner and, before an arbitrator, the employer must satisfy the arbitrator in this regard.  No specific evidence was tendered on the issue of why the grievor could not have been employed as a constable in the Toronto area pending a disposition by the courts.  No specific evidence was tendered on why, for an interim period, the grievor could not have been employed as he had been.  What were the alternatives open to the employer?  Why were none of them practical in the circumstances?  In my view, these question went unanswered in the employer’s presentation of its case.  At the point in time of December 1, 1978 the grievor was guilty of nothing; had a long and unblemished record of employment with the employer; and the consequences of a suspension without pay to him were obvious.  In this situation an employer must exercise the utmost caution and care in tailoring a solution that meets both its interests and the employee’s to the greatest extent possible and this includes the possibility of suspension with pay.  In this case, I am not satisfied that the employer exercised its judgment reasonably.  Affected by the existence of a criminal charge against the grievor which it rightly considered serious, the employer appears to have rushed to judgment, immediately suspending the grievor as if this was a neutral event to him.  While common sense tells one that the grievor was employed in a sensitive position and one in which his effectiveness could well be impaired by the mere existence of a criminal charge, common sense cannot establish this latter possibility as fact.  On the evidence presented, I am not satisfied that the employer reasonably considered the existence of a shoplifting charge sufficiently serious to hold the grievor out of service without pay.  He is therefore entitled to compensation to the date of his actual dismissal and I retain jurisdiction to establish and direct the exact amount owing, failing agreement of the parties.  However, I do award that this compensation be at the rate prescribed in the collective agreement for sergeants.

 

                This brings me to his dismissal.  Counsel to the Association submitted that it was open to me to find that the grievor had not, on the facts presented, stolen the skipping rope.  In this event, he argued, the grievor should be reinstated to his former position and fully compensated for his losses occasioned by the dismissal.  In opposition, counsel to the employer took the position that the employer was entitled to act on the undisputed fact that a criminal court had found the grievor guilty of theft and the employer was not, in those circumstances, obligated to establish the actual commission of a theft.  It was his submission that the mere fact of the finding by the criminal courts was something the employer had a legitimate interest in. This fact embarrassed the employer before its customers and police departments, and widespread knowledge could undermine public confidence in the security capabilities of the employer.  In addition, the employer submitted that the morale of trainees and subordinate officers would be severely impacted if it was necessary for them to submit to the supervision of a sergeant found guilty of theft.

 

                On these submissions and the evidence presented, I am more persuaded by the employer’s viewpoint.  I find that it is not necessary for this employer to establish on the balance of probabilities that the grievor engaged in theft.  The mere existence of that finding by the criminal courts presented ample justification for it to take disciplinary steps against the grievor.  For this reason, the principal issue before me is whether some other penalty should be substituted for the dismissal imposed, having due regard to all the circumstances. It is to be noted that the collective agreement does not contain a specific penalty for the infraction that is the subject of this arbitration.

 

                This decision is by no means an easy one and I have reviewed elsewhere how the lack of specific guidelines allows for disagreements between arbitrators and even the most thoughtful of employers.  See Adams, Grievance Arbitration of Discharge Cases: A Study of the Concepts of Industrial Discipline and their Results, Queens University Industrial Relations Center, (1978).  Criteria which arbitrators and management should take into account have been set out in the many cases that have dealt with such matters and the best known is of course the decision of Steel Equipment Co. Ltd. (1964), 14 L.A.C. 356 (Reville).

 

                The following consideration have caused me to conclude that the grievor is to be reinstated, without additional compensation to that determined above, into the employ of the employer as a constable, not as a sergeant, and that he is to have status of a probationary employee for a period of one year in the sense that any reoccurrence of a similar problem will permit the employer to terminate him.  I have been influenced and have taken into account the employer’s concern for the relationship between a sergeant and trainees and constable.  In awarding no additional back pay, I have also taken into account the severity of the grievor’s conduct or circumstances.  Undoubtedly, this monetary penalty is far in excess of that imposed upon him by the criminal process.  Indeed, that process did not convict, but rather registered and absolute discharge.

 

                On the other hand, the grievor has served this employer long and well.  He is at an age when alternative employment opportunities are few and far between. He was found guilty of a very minor theft on any view of the situation and there can be no suggestion that the grievor is an inveterate and unforgiving thief who is likely to strike again.  The grievor had difficulty before me in admitting that he intended to take the skipping rope, but it is clear that he is genuinely apologetic for the circumstances and I am satisfied that he is not, in fact, a security risk to this employer.

 

                Also of importance is the fact that no conviction has been registered, and this should soften the post reinstatement impact on the employment relationship and the carrying out of constable duties by the grievor.  I am also influenced by the fact that the situation involved off duty conduct and was not related to goods held in trust by the employer for its customers.

 

                Taking all these considerations into account, it is just and reasonable to direct, and O so do, that the grievor be reinstated into the employer’s employ as a constable and that for a period of one year from June 13, 1979, he be considered probationary with respect to the kind of problem giving rise to this grievance.  He is awarded back pay at the level or sergeant only for the period from December 1, 1978 to February 13, 1979.

 

DATED at Toronto this 27th day of July, 1979.

 

 

 

 

George W. Adams

Arbitrator