AH - 182
IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN PACIFIC LIMITED
(the “Company”)
AND
CANADIAN PACIFIC POLICE ASSOCIATION
(the “Union”)
IN THE MATTER OF THE GRIEVANCE OF CONSTABLE D. JODOIN
SOLE ARBITRATOR: Harvey Frumkin
There appeared on behalf of the Company:
D.W. Flicker
And on behalf of the Union:
Hélène Lebel
A hearing in this matter was held at Montreal, Quebec, on the 31st day of August, 1983.
The undersigned, Harvey Frumkin, was by agreement of the parties hereto appointed sole Arbitrator to hear and decide the above grievance. The hearing was held at Montreal on August 31, 1983. Me Hélène Lebel represented the Union and Me. D.W. Flicker acted for the Company. After duly considering the arguments of both sides, studying the various exhibits submitted, the evidence taken at the hearing and the Collective Agreement, the Tribunal submits herewith its decision.
The grievance before the Tribunal bears date April 28, 1983 and is directed against the decision of the Company to discharge the Grievor on April 4, 1983 pursuant to allegations that the Grievor absented himself from his post authorization at various intervals during each of seven (7) consecutive days of duty. The grievance reads as follows:
“Dear Mr. Mickel:
Pursuant to articles 10:05 and 11:04 of the Collective Agreement, the Association hereby appeals the decision to terminate Constable Denis Jodoin. Having regard to all relevant circumstances, notably his seniority, his record and the fact that, at the time of the alleged incidents, Constable Jodoin was under considerable stress because of the break-up of his marriage.
We consider the decision to terminate him to be unfair and unjust. We request that Constable Jodoin be reinstated with full compensation.
Having regard to the nature of this case, we suggest that a meeting be held with representatives of the Association to review and discuss this grievance.”
The grounds invoked by the Company in support of its decision to discharge the Grievor are contained in its letter dated April 20, 1983 in which it advised the Grievor of its decision.
“Constable D. Jodoin
a/s Bureau de Police
Gare Windsor
Montreal, Que.
Veuillez référer à l’audience disciplinaire tenue dans le bureau de l’inspecteur - Personnel L. Lecavalier, le 14 avril 1983 en rapport avec des allégations que les 23, 24, 25, 26, 27, 28 et 29 mars 1983, vous avez déserté et laissé sans protection votre poste à la cour de Ste-Thérèse et que lors de ces mêmes dates, sans permission et contrairement aux règlements, vous avez utilisé une voiture officielle du département à l’extérieur des limites de la propriété de la Compagnie et ce à des fins non-autorisées. Aussi, que vous avez falsifié des formulaires du département et avez intentionnellement donné de faux renseignements quant à vos allées et venues. De plus, alors que vous étiez en devoir le 28 mars 1983, vous avez conduit, sans permission, à l’intérieur de même qu’a l’extérieur des limites de la propriété de la compagnie un véhicule qui n’appartenait pas au département. Conformément aux dispositions de l’Article 10.04 de la Convention Collective entre le Canadien Pacifique, vous êtes avisé par la présente que toutes ces allégations sont soutenues et que vous êtes congédié du service de la Compagnie, ceci prenant effet au moment de votre suspension, soit à 23h00, le 4 avril 1983.”
The facts which precipitated the discharge are not in dispute. These for the most part are contained in a Joint Statement of Facts and Dispute which the parties submitted to the Tribunal at the outset of the hearing and which reads as follows:
“IN THE MATTER OF the Canadian
Pacific Police Association and
Canadian Pacific Limited
Department of Investigation;
AND IN THE MATTER of Constable
Denis Jodoin
JOINT STATEMENT OF FACTS AND DISPUTE
1. On April 12, 1976, Denis Jodoin was engaged as a constable in the Canadian Pacific Limited Department of Investigation (“the Department”) and sworn as a railway constable pursuant to the provisions of section 400 of the Railway Act of Canada. As such, he was a peace officer within the meaning of section 2 of the Criminal Code.
2. Constable Jodoin has no prior disciplinary record.
3. On august 1, 1980, the Department began, due an unacceptable level of theft and vandalism, to provide security surveillance of CP Rail’s Ste. Thérèse Yard Facilities in two shifts from 15:00 to 23:00 hours and from 23:00 to 07:00 hours. The Ste. Thérèse Yard is an industrial rail yard of sixty acres consisting of twenty-five of trains and the movement of rail cars. It is wholly dedicated to the servicing of the Ste. Thérèse General Motors automobile assembly plant.
4. Constable Jodoin was assigned to duty at the above Yard on August 1, 1980. At the material time his tour of duty at the Yard was 15:00 to 23:00 hours shift. His duties in general were to patrol and protect the yard.
5. During the period immediately preceding his suspension, constable Jodoin was scheduled to work:
March 22 15:00 - 23:00
March 23 “ “
March 24 “ “
March 25 “ “
March 26 “ “
March 27 “ “
March 28 “ “
March 29 15:00 - 23:00
March 30 day off
March 31 day off
April 1 23:00 - 07:00
April 2 “ “
April 3 “ “
April 4 “ “
He did report for work as required
6. Constable Jodoin was notified of the charges against him and suspended pending investigation when he reported for work on April 4, 1983 at 23:00.
7. A surveillance of Constable Jodoin while on duty was carried on by two officers of the Department.
8. As a result of the information obtained during such surveillance, constable Jodoin was suspended from service effective 23:00 hours, April 4, 1983 on the basis of following allegations for which his responsibility was established pursuant to article 10.01 of the collective agreement between the parties:
“…que les 23, 24, 25, 26, 27, 28 et 29 mars 1983, vous avez déserté et laissé sans protection voter poste à la cour de Ste-Thérèse et que lors de ces mêmes dates, sans permission et contrairement aux règlements, vous avez utilisé une voiture de la propriété de la compagnie et ce à des fins non-autorisées. Aussi, que vous avez falsifié des formulaires du département et avez intentionnellement donné de faux renseignements quant à vos allées et venues. De plus, alors que vous étiez en devoir le 28 mars 1983, vous avez conduit, sans permission, à l’intérieur de même qu’a l’extérieur des limites de la propriété de la Compagnie un véhicule qui n’appartenait pas au département.”
9. At the hearing conducted pursuant to the provisions of article 10 of the collective agreement, constable Jodoin did not deny the facts and recognized that he had left the Ste. Thérèse yard while he was on duty.
10. The Association submits that, having regard to all the pertinent facts and circumstances of this case, the dismissal of Constable Jodoin is unfair and unjust and therefore contrary to the provisions of the collective agreement. It requests that the grievance be upheld.
11. The Department submits that Constable Jodoin was properly dismissed for cause and that the present grievance should be dismissed.
_____________________________ ____________________________
For the Canadian Pacific For the Canadian Pacific
Police Association Limited Department of
Investigation”
The evidence submitted at the hearing merely elaborated upon the facts and circumstances revealed in the joint statement above reproduced. This evidence disclosed that the company maintained a railway yard extending over a territory of some sixty (60) acres adjacent to the General Motors facility at Ste-Thérèse, Quebec. Under contract with General Motors, the company had placed this railway yard and its facilities at the disposal of the customer for its purposes. In effect, vehicles, parts and supplies of General Motors plant facility via the Ste-Thérèse railway yard as it was called.
Prior to August 1, 1980, a very significant level of vandalism and theft to property of General Motors that had been placed in the railway yard had been experienced. The damages suffered were extensive and in the hundreds of thousands of dollars. As the railway yard was owned and operated by the Company, it would not have been surprising that General Motors insisted that effective surveillance be installed in the railway yard with a view to eliminating the numerous instances of theft and vandalism that had been experienced. At the insistence of General Motors, therefore, the Company on august 1, 1980 assigned uniformed constables to the railway yard for purposes of surveillance and security between the hours of 3:00 P.M. and 07:00 A.M. seven (7) days a week. This period was covered by two (2) separate shifts, one extending from 15:00 hours to 23:00 hours and a second from 23:00 hours to 07:00 hours. Each shift was staffed by one constable who worked alone and without supervision. The Grievor was one of these constables and had been assigned to such duty from the very beginning when the Company first made provision for surveillance of the railway yard on August 1, 1980.
From the inception of the surveillance measures, the problem of theft and vandalism virtually disappeared. It would see that constant surveillance of the railway yard over the course of the two (2) shifts was a sufficient measure to prevent occurrence of the problems that had been previously encountered. It was the duty of each constable to be on location throughout the entirety of his shift and to constantly circulate throughout the sixty (60) acres of railway yard which he was assigned to protect. These duties took on var5ious forms such as verifying incoming and outgoing railway cars, verifying for damage on incoming parts or equipment and constantly patrolling the area.
It was disclosed at the hearing that sometime prior to March 23, 1983, Company officials began to suspect that the Grievor was leaving his post and the railway yard during his period of duty. To investigate these suspicions, the Company placed the Grievor under constant surveillance during the period March 22, 1983 to April 4, 1983 inclusive. Over the first eight (8) days of this period, the Grievor was assigned to the 3:00 P.M. - 11:00 P.M. shift. The Grievor was the off duty on March 30, 1983 and March 31, 1983. He returned to work on April 1, 1983 continuing to work on that day and the following three (3) days on the 11:00 P.M. to 07:00 A.M. shift.
It would appear that March 22, 1983 passed without incident. On each of the following seven (7) days, however, the Grievor was seen to abandon his post for periods of up to two (2) hours per shift. On these occasions, he would leave the railway yard completely in a Company vehicle. During the absences, the railway yard remained unattended and totally without surveillance. In order to cover up the absences, the Grievor would provide false information as to his whereabouts when reporting to the central office which he was required to do every two (2) hours. In all, the aggregate total of the absences over these seven (7) days was timed at 14.43 hours.
On April 4, 1983, the Grievor was suspended from duty and confronted by his superiors with the findings revealed by the surveillance which the Company had established on March 22, 1983. The Grievor did not deny that he had abandoned his post as alleged. Further investigation and a formal hearing followed, after which the Company proceeded to discharge the Grievor.
There is no question upon the evidence that proper occasion for discipline existed and the parties acknowledged as much. The Grievor had assumed a position of high responsibility. He was a police officer in charge of seeing to the security and surveillance of an extensive territory containing merchandise, parts and equipment of vast value. Working alone as he did, his position entailed a high degree of trust upon which his employer was entitled to rely. The only question which the grievance raises and to which the parties addressed themselves is whether the sanction of discharge imposed by the Company to redress the misconduct of the Grievor was too severe in the circumstances.
The Tribunal will repeat that the Grievor had assumed a position of police officer involving a high degree of responsibility. The company had placed a great deal of trust in the Grievor in assigning him to establish and maintain surveillance of a large territory containing property of great value belonging to a third party. It had every right to assume that the Grievor would see to his responsibilities and be present in the Railway yard all times. The Grievor could have had no doubt whatsoever in his mind that to leave his post was a serious matter. In fact, he was required to report to central office every two (2) hours and it is not difficult to imagine what the consequences of what the Grievor did might have been for the company. The Grievor’s actions can only be characterized as misconduct of the utmost gravity amounting to wanton irresponsibility on his part. Thus, the Tribunal cannot in good conscience blame the company for the manner in which it viewed the Grievor’s actions.
The Grievor acknowledges that the abandoning of his post was wrong and a serious matter but stated that at the time he was confronted with personal problems that should serve to mitigate the degree of culpability that he should bear in the context in the context of a decision to discharge. He testified that he had experienced marital problems and that his wife had definitely left him during the month of October, 1982. From that time, he was involved in various court proceedings and had established a relationship with a female companion who resided not far from the Railway yard. The various absences allowed him to establish his residence in the vicinity, where he intended to relocate. The Grievor invokes as well his seven (7) years of service with the Company and a record which is essentially without incident.
This Tribunal as well as any tribunal should always weigh carefully the matter of justification for discharge of a long-standing employee. Discharge should be reserved for very serious cases where the conduct of a grievor or circumstances surrounding such conduct are such that a continuation of an employer-employee relationship is no longer tenable . Having considered the circumstances of the present case, however, the Tribunal must conclude that both these tests are met. The Tribunal must conclude that both these tests are met. The Tribunal cannot ignore the wanton irresponsibility of a police officer in leaving his post for periods of as much as two (2) hours when that police officer was entrusted to survey and protect a railway yard which had been the subject of extensive theft and vandalism in the past, and which contained property of very substantial value. The occurrence was not an isolated one and the Company may well have been justified in believing that such occurrences had taken place with regularity prior to inception of surveillance measures. The Grievor by what he had done had severely compromised the trust that his employer had placed in him and it is difficult for the Tribunal to take issue with the conclusion at which the employer had arrived, namely, that it could no longer trust the Grievor in his duties.
The Tribunal has received various decisions submitted by Union counsel in which mitigating factors were recognized to justify tribunals of arbitration in substituting for discharge some disciplinary penalty less severe. The circumstances of each of the cases submitted, however, bear little resemblance to the facts confronting the Tribunal in this case. Most important is that in none of these cases was the level of responsibility as high as it was in the present case. In some of the cases, serious mitigating factors existed. In short, the Tribunal can see no basis for application of any of these decisions to the present case.
For the foregoing reasons, the Tribunal can find no justification for intervening in the Company’s decision and the discharge will accordingly be maintained.
The grievance is dismissed.
Montreal, September 12, 1983
___________________________________
HARVEY FRUMKIN - ARBITRATOR