ah341

IN THE MATTER OF AN ARBITRATION

 

B E T W E E N :

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

- a n d -

UNITED TRANSPORTATION UNION

(the "Union")

 

GRIEVANCE RE DISCHARGE OF CONDUCTOR

D.G. SMITH OF EDMONTON

 

ARBITRATOR : Michel G. Picher

 

APPEARING FOR

THE COMPANY : G. Laidlaw - Labour Relations Officer

G.C. Blundell - Manager Labour Relations, Edmonton, Alta .

A. Wagner - Terminal Superintendent

R. Anderson - Transportation Officer

 

APPEARING FOR

THE UNION : D.W. Ellickson - Counsel, Toronto

J.W. Armstrong - General Chairperson, Edmonton

Mel G. Eldridge - Vice-General Chairperson

John W. Armstrong - General Chairperson

D. Gagnon - Secretary

Don Smith - Grievor, Edmonton

 

 

A hearing in this matter was held in Edmonton on October 1, 1994.

 

 

 

 

A W A R D

 

The facts giving rise to the dispute and the issues are summarized in a joint statement of issue filed at the hearing, which reads as follows :

 

Dispute

Appeal the discharge of Conductor D.G. Smith of Edmonton, Alta. for fraudulent submission of time claims between March 8 and April 12, 1993.

 

Joint Statement of Issue

In a span of thirty-six days between March 9 and April 12, 1993 Conductor D.G. Smith submitted thirty one (31) time returns which included claims for time to which he was not entitled. Following an investigation on April 26, 1993 the grievor was discharged effective May 4, 1993 for fraudulent submission of time returns.

The Union appealed the decision to discharge Conductor Smith on the grounds that the discipline imposed was excessive in light of all the circumstances, including Conductor Smithís long service with the Company. The Union requests that Conductor Smith be reinstated will full seniority and benefits and that he be made whole.

The Company has denied the appeal.

 

It is not disputed that Mr. Smith submitted fraudulent time claims as alleged. Some of the instances before the arbitrator can be viewed as mitigated, to the extent that they involved the grievor rounding out departure and arrival times by less than five minutes, in accordance with accepted practice. A number of the instances, however, go beyond that rule, and plainly involved the misappropriation of wages on repeated occasions. Most significantly, departure times were often incorrectly stated, for periods of 10 minutes or more, although the exaggeration was somewhat less pronounced with respect to arrival times.

 

 

 

 

 

Mr. Smith has an unenviable record as regards the filing of fraudulent time claims. On March 10, 1992, he was assessed 30 demerits for having made fraudulent time claims and, on February 6, 1993 suffered a 30-day suspension for the same infraction. Unfortunately, this case involves the third strike against him.

In the face of the grievorís record the arbitrator is compelled to accept the position of the Company that its trust in Mr. Smith has been so undermined as to destroy the viability of his continued employment relationship. The principles which governed in a case such as this were touched upon in CROA 2304 in the following terms :

The jurisprudence dealing with the appropriate disciplinary consequences for fraudulent wage or benefits and other forms for theft are legion, and need not be repeated here (see, e.g. CROA 1835, 2184). In the circumstances of the case at hand the Arbitrator has difficulty seeing mitigating factors which are compelling in the grievorís favour. The evidence disclosed that he pursued his course of action for a considerable period for time before making any inquiry of either the union or the employer with respect to its propriety ... . The Arbitrator is driven to the conclusion that the course of action pursued by Mr. Ellerbeck has irrevocably severed the relationship of trust which is implicit in the service of an employee who is responsible for his or her own wage claims, in a largely unsupervised setting. In the Arbitratorís view the discharge of the grievor was justified.

For reasons which he can best understand, notwithstanding prior discipline and warnings, Mr. Smith has persisted in the filing of fraudulent time claims for the purpose of gaining higher compensation from his employer, for work not performed. In the circumstances, the arbitrator is satisfied that termination was the appropriate response, and that there are no mitigating factors which would suggest any alternative.

For the foregoing reasons, the grievance must be dismissed.

DATED at Toronto this 6th day of October 1994.

________________________

Michel G. Picher - Arbitrator