AH – 370

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CP RAIL SYSTEM HEAVY HAUL – CANADA

(the “Company”)

AND

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

(the “Union”)

GRIEVANCE RE DISMISSAL OF D.A. WHITE

SOLE ARBITRATOR:                Michel G. Picher

There appeared on behalf of the Company:

Rob Andrews                             – Labour Relations Officer, Vancouver

Dave Phillips                              – Signals & Communications Supervisor, Calgary

D. T. Cooke                               – Manager, Labour Relations, Montreal

Bob Nash                                  – Director, S&C, Montreal

A. L. Voisin                               – Manager, Planning & Standards, Montreal

And on behalf of the Union:

John E. Platt                             – International Representative

A. G. Cunningham                     – Senior System General Chairman

J. Senenko                                – System General Chairman

A hearing in this matter was held in Montreal on December 15, 1995.

AWARD

This arbitration concerns the grievance against discharge of Signals and Communications Maintainer, D.A. White. The dispute and joint statement of issue filed at the hearing, reads as follows:

DISPUTE:

On January 10, 1995, S & C Maintainer, Mr. D.A. White was dismissed from Company service for “your unauthorized use of a Company vehicle and for your fraudulent use of a Company credit card for the purchase of fuel for your personal use on numerous occasions, as evidenced by your being charged by Police with theft under $1000.”

STATEMENT OF ISSUE:

The Union contends that the discipline assessed is unwarranted and excessive.

The Company disagrees with the Union’s Contentions and argues that Mr. White was properly dismissed from the service of the Company.

Before the arbitrator, it is not disputed that Mr. White misappropriated Company funds, by purchasing gasoline for his own vehicle on a Company credit card. Following a report made to CP Police, the grievor was put under surveillance. During that time, on October 25, 1994, he was observed fuelling a Company truck and, at the same time, filling a 10 litre gas container. The entire charge of $47.00 was placed on the Company credit card and the grievor took the 10 litre gas container home for use in his own vehicle. Mr. White was subsequently charged and convicted of theft under $1,000, contrary to the Criminal Code of Canada.

The Company’s investigation confirms that the action for which the grievor was charged and convicted was not an isolated incident. It does not appear disputed that Mr. White had been involved in the theft of gas for use in his own vehicle, by means of the Company’s credit card, for over a year and a half.

When initially apprehended by the police, the grievor gave what the Court found to be a voluntary confession, admitting that he had stolen gas on a regular basis over a substantial period of time. He did not argue that he did so under any colour of right or authorization from the Company. During the course of his disciplinary investigation, however, Mr. White suggested that he believed that he had permission to take gas for his own vehicle. This, he rationalized, was because he occasionally was called upon to use his own car for call-outs to Company service.

The record, however, does not sustain the grievor’s claim that he had any general permission to purchase gas for his own vehicle on the Company’s credit card. At most, the evidence suggests that on one occasion in 1985, the grievor’s supervisor, Mr. Phillips, agreed to the grievor’s request that he be allowed to fill the gas tank of his personal vehicle using another employee’s Company credit on a single, extraordinary occasion. It appears that when the grievor asked a second time for the same favour, Mr. Phillips refused, telling him that he should submit an expense account for travel in his personal vehicle. Nevertheless, the grievor maintained, during the course of the Company’s investigation, that he believed that he had received further approval from Mr. Phillips approximately a year and a half prior to the incident giving rise to his termination. Mr. Phillips has no recollection of any such further permission, nor is it corroborated by any other evidence. In the result, the arbitrator does not accept that the grievor had permission to purchase gasoline for his personal vehicle using the Company’s credit account at any time material to the instant grievance.

The Union submits that the grievor should be reinstated into his employment on compassionate grounds. It stresses that he has some 20 years of discipline-free service, and extensive experience which may still of great value to the Company. On the grievor’s behalf, it suggests that he might return to work, demoted to the position of S&C Gang Helper, where he would be under direct supervision of a foreman or supervisor.

The instant case bears some similarity to CROA 1631. In that case, an employee was discharged for purchasing $30.00 worth of gasoline for his personal vehicle, using a Company credit card. In upholding the dismissal, this arbitrator commented as follows:

The grievor is described as a good employee of 23 years’ service. These are factors which should be given some weight in considering whether a reduction in the measure of discipline is appropriate. On the other hand, theft is, prima facie, a dismissable offence, in some cases even where the amount which an employee steals from his or her employer is not substantial. Since theft generally negates the fundamental trust that must exist between employer and employee, it is only in exceptional circumstances that an Arbitrator’s discretion will be exercised to reduce the measure of discipline in such cases. As was noted in CROA 806, “… the common ground of most of those cases is that the theft was an isolated, anomalous act in the career of a person who has otherwise shown himself to be a good employee and a good citizen”. It may also be noted that this Office has had previous occasion to sustain the discharge of an employee for theft arising out of the refuelling of his vehicle with Company gasoline (see CROA 1060).

See also CROA 806 and SHP 255 and SHP 274.

The arbitrator can readily understand the perception of the case advanced by the Union. The case of the termination of an otherwise productive and good employee for acts of petty theft is among the most difficult, particularly when the person in question has invested many years of service. By the same token, however, boards of arbitration have long recognized that mutual trust is an essential element of any ongoing employment relationship. Actions which break that bond are, subject to certain recognized exceptions, grounds for ending the employment relationship. Mitigating factors which might justify discipline short of discharge include the possibility that a grievor acted in an uncharacteristic fashion, on the spur of the moment, where the act of theft can fairly be characterized as an isolated incident. Further mitigating factors such as personal financial hardship, stress or depression supported by medical documentation or other such evidence may also be taken into account.

Unfortunately, in the instant case, one searches in vain for mitigating factors of the kind described above. By the grievor’s own admission, his practice of petty theft has been systematic and ongoing for as much a year and a half, on a regular basis. Further, the inconsistency between the grievor’s explanation to the Company, where he claims that he believed he had permission to take the fuel, and his statement to the police, which is devoid of any such explanation, raises serious issues with respect to his candour, and his overall willingness to admit to his own wrongdoing. Mr. White’s attempts to justify his actions during the course of the Company’s discipline interview are entirely inconsistent with his statement to the police. His statement to the police includes the following, in response to a question as to how his practice began:

Spring or fall, about the end of ‘92. It seemed to get easier, I guess, and then every second fill-up I would take 10 litres of gas, because you hear stories of people in Odgen Shops skiving (stealing).

So I assumed if it’s easy for everybody on the railroad to do it, why not Dave White?

Unfortunately, the record before me does not disclose an employee who engaged in an act of theft in a single uncharacteristic gesture or on the spur of the moment. Mr. White’s theft was calculated, repeated and in accordance with an established pattern over a substantial period of time. Of equal concern, the record of the police investigation, coupled with that of the Company, does not disclose an employee who has been candid or consistent in his admission of wrongdoing towards his employer. The statement which he gave to the police is far more inculpatory than that which he was prepared to give to the Company during the course of its disciplinary investigation. In these circumstances, the employer cannot be faulted for viewing the grievor as something less than an employee who recognizes his wrongdoing, regrets his actions and has “come clean”, so that there is a fresh basis to begin rebuilding a relationship of trust. On the contrary, for reasons which he best appreciates, Mr. White has compounded the dishonesty of theft with further dishonesty in explanation of his actions. In these circumstances, as difficult as the consequences may be, there is no responsible basis upon which the arbitrator can overturn the Company’s decision.

For all of the foregoing reasons, the grievance must be dismissed.

DATED AT TORONTO, this 21st day of December, 1995.

(signed) MICHEL G. PICHER

ARBITRATOR