BETWEEN:

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: Harvey Frumkin

There appeared on behalf of the Company:

D. M. Lanthier – Labour Relations Officer, Winnipeg

G. Blundell – Manager, Labour Relations, Edmonton

L. M. Quilichini – Manager Rail Traffic Control Centre, Edmonton

And on behalf of the Union:

Peter Taves – National Vice-President, Winnipeg

Philippe Wojtowiez – System Chairman, Montreal

Maurice Boucher – Local Chairman Montreal

A hearing in this matter was held at Montreal on September 22, 1993.

The grievance contests the dismissal of operator E.L.M. Leschasin, effective May 14, 1992, for fraudulently attempting to obtain lodging at Company expense. It maintains that the discipline assessed was too severe in the circumstances, and requests that some lesser penalty be substituted for the discharge.

The Joint Statement of Issue presented by the parties is as follows:

The circumstances of the misconduct attributed to Mr. Leschasin are not disputed. He entered the service of the Company on September 7, 1965, and at the time of the dismissal occupied the position of operator at Humboldt, Saskatchewan.

On April 10, 1992, Mr. Leschasin checked into a room at the Skyline Motel in Swan River, Manitoba, under an assumed name, identifying himself as L. Fisher. At the same time he informed the desk clerk that he was a Company representative and that all room charges were to be billed to the Company’s manager of Train Service in Canora, Saskatchewan. Mr. Leschasin’s purpose was to secure lodging free of charge for a planned two-day stay.

As it happened, the desk clerk proceeded to verify the authority of the person bearing the name submitted by the Grievor to incur room charges on behalf of the Company by contacting directly the Company’s Manager of Train Service at Canora, Saskatchewan. When, as a result of this inquiry, the desk clerk learned that the Company had no knowledge of the assumed name submitted by Mr. Leschasin he summoned authorities. Mr. Leschasin was ultimately charged with fraudulently obtaining lodging, to which charge he entered a plea of guilty.

Mr. Leschasin, during the course of a formal investigation that followed, explained his conduct in terms of his belief that the Company leased rooms at the particular hotel on a monthly basis and that his occupancy of one of these rooms, which would have otherwise remained empty, would have represented no additional cost for the Company. Thus he insists that it was not his intention to in any way defraud the Company.

This explanation, notwithstanding, the Company characterized Mr. Leschasin’s conduct as a premeditated attempt to defraud it by making use of knowledge that only he as a Company employee could have possessed. From the Company’s perspective Mr. Leschasin, by reason of his conduct, was no longer worthy of its trust and for that reason it could no longer retain him in its service.

The Union, while acknowledging the blameworthy conduct of the Grievor, contends that the Company’s response to the incident was far too harsh. It points out that Mr. Leschasin had accumulated some 27 years of service at the time of the dismissal and possessed an otherwise unblemished record. It contests the Company’s characterization of Mr. Leschasin’s conduct as dishonest and in this regard refers to his explanation to the effect that he did not believe that his unauthorized use of the hotel room which he sought to occupy free of charge would represent additional cost for the Company. It concludes, therefore, that not only is dismissal too severe for the circumstances, but that there exists as well mitigating factors which should operate to reduce the severity of the sanction imposed by the Company.

It cannot be denied that Mr. Leschasin knew full well that if his scheme succeeded he would be securing hotel lodging free of charge, a benefit to which he was not entitled. To secure such a benefit he resorted to the commission of a fraudulent act, namely, the submission to a hotel clerk of an assumed name, coupled with a directive that room charges incurred be billed to the office of the Company where billing would normally be directed under the circumstances presented. To such end he employed knowledge which he had acquired as an employee of the Company. Had the desk clerk not seen fit to verify the authenticity of the name submitted by Mr. Leschasin, the billing for room charges would have been forwarded as requested and would either have been paid or disputed. In the former case, the Company would have incurred a charge as a result of Mr. Leschasin’s fraudulent act, and in the latter would have been put to considerable inconvenience.

Although dismissal is not a necessary or automatic response to employee fraud or theft, arbitrators have been reluctant to intervene in discharge cases where the dishonest conduct identified has been accompanied by planning and use of specialized knowledge available to the employee by reason of the employment relationship. In such cases the actions impugned are characterized as particularly serious because they call into question an approach to duty and state of mind which undermine the element of trust upon which the employment relationship must be based. This category of dishonest conduct is viewed in a different light than is the case of a spontaneous dishonest act involving items of little value committed by an employee of long standing. In such latter category of cases arbitrators have been inclined to view the dishonest action as a momentary lapse which should not necessarily operate so as to preclude the possibility of a second chance for the employee with lengthy service.

Mr. Leschasin’s conduct, however, was deliberate and planned. It was anything but impulsive or spontaneous. He knew precisely what he was doing and precisely how to go about achieving his purpose. He did what he did because he believed that the desk clerk would forward the room charges as he had directed they should be forwarded, so that in the final analysis, he would secure the benefit of free lodging to which he was not entitled.

The Company adopted the position that it could not tolerate conduct in the nature of that exhibited by the Grievor. It points out that the Grievor’s actions may have gone unnoticed and would have been difficult to trace once the bills were received by it. It felt that to have adopted any other course in dealing with the Grievor’s misconduct would compromise its ability to control accounts of the type which the Grievor sought to incur for it in this case and in so doing would be sending the wrong message. The Arbitrator cannot take issue with this approach for that reason and must conclude that intervention is unwarranted.

For the foregoing reasons, the grievance is dismissed.

MONTREAL, September 28, 1993