AD HOC 432 - TRANSLATION

AWARD

The Disputes and Joint Statements of Issue filed at the hearing read as follows:

DISPUTE:

After having been arrested by Canadian Pacific Police Officers on August 17, 1989, Mr. Marc Bélanger was suspended from his employment on August 18, 1989 and subsequently dismissed on August 28, 1989.

JOINT STATEMENT OF ISSUE:

Following an investigation held on August 25, 1989, the grievor was dismissed for:

a) Attempting to steal a hockey sweater on July 17, 1989;

b) Opening a box of peanuts on July 12, 1989;

c) Attempting to steal a pair of slacks from a package on July 18, 1989;

d) Stealing an audio cassette from a package on July 26, 1989.

The Union grieves the discharge for the following reasons:

a) The grievor was disciplined six (6) days before the investigation which resulted in his discharge;

b) That investigation was not held within the fourteen (14) days following the date of the incident in conformance with Article 8.2 of the Collective Agreement and, as a result, the Union claims that Articles 8.3 and 8.4 of the Collective Agreement apply;

c) The grievor did not commit the offences of which he is accused;

d) The Company’s police officers used illegal procedures in attempting to incriminate the grievor;

e) The discharge of the grievor is illegal, unjust and too severe given all of the circumstances.

The Union requests that the grievor be reinstated into his employment without loss of seniority, wages and other benefits to which he is entitled by the terms of the Collective Agreement.

The Company rejects the claims of the Union and rejected the grievance at all steps of the grievance procedure.

DISPUTE:

After having been arrested by Canadian Pacific Police Officers on August 17, 1989, Mr. Michel Lelièvre was suspended from his employment on August 18, 1989 and subsequently dismissed on August 28, 1989.

JOINT STATEMENT OF ISSUE:

Following an investigation held on August 25, 1989, the grievor was dismissed for:

a) Damaging a box of peanuts on July 12, 1989;

b) Opening a package on July 24, 1989;

c) Stealing an audio cassette from a parcel on July 26, 1989.

The Union grieves the discharge for the following reasons:

a) The grievor was disciplined six (6) days after the investigation which resulted in his discharge;

c) The grievor did not commit the offences of which he is accused;

d) The Company’s police officers used illegal procedures in attempting to incriminate the grievor;

e) The discharge of the grievor is illegal, unjust and too severe given all of the circumstances.

The Union requests that the grievor be reinstated into his employment without loss of seniority, wages and other benefits to which he is entitled by the terms of the Collective Agreement.

The Company rejects the claims of the Union and rejected the grievance at all steps of the grievance procedure.

DISPUTE:

After having been arrested by Canadian Pacific Police Officers on August 17, 1989, Mr. Mario Robidoux was suspended from his employment on August 18, 1989 and subsequently dismissed on August 28, 1989.

JOINT STATEMENT OF ISSUE:

Following an investigation held on August 25, 1989, the grievor was dismissed for:

a) Removing a pair of slacks from a package on July 18, 1989;

b) Opening a package and distributing some perfumed flowers to other employees on July 24, 1989;

c) Stealing audio cassettes from a package on July 26, 1989.

The Union grieves the discharge for the following reasons:

a) The grievor was disciplined six (6) days after the investigation which resulted in his discharge;

c) The grievor did not commit the offences of which he is accused;

d) The Company’s police officers used illegal procedures in attempting to incriminate the grievor;

e) The discharge of the grievor is illegal, unjust and too severe given all of the circumstances.

The Union requests that the grievor be reinstated into his employment without loss of seniority, wages and other benefits to which he is entitled by the terms of the Collective Agreement.

The Company rejects the claims of the Union and rejected the grievance at all steps of the grievance procedure.

This is a matter of three grievances concerning the discharge of Mr. Marc Bélanger, Mr. Michel Lelièvre and Mr. Mario Robidoux. They were suspended from their jobs in the Company’s warehouse at Lachine on August 18 and dismissed on August 28, 1989. The three grievors were accused of stealing the property of the Company’s clients as well as opening some customers’ packages, in some cases rifling the contents and attempting to steal the contents of packages.

Counsel for the Union raises a preliminary objection concerning the role played by the CP Police in the investigation of the grievors. For the reasons elucidated in the award of Daniel Champagne (AH-431), that objection is rejected.

The evidence discloses that the police officers witnessed two types of offences in the Company’s warehouse at Lachine between July 7 and 26, 1989. The first offence involved the rifling of the contents of certain boxes which were in transit in the warehouse. It involved, among other things, the removal of a pair of slacks from a package by Mr. Robidoux on July 18, twice observing the removal of hockey sweaters from a package by Mr. Robidoux and Mr. Bélanger on July 7 and the playing with some perfumed flowers marked “Coty” by Mr. Robidoux and Mr. Lelièvre. The second type of offence was the pilfering of goods, including peanuts on July 12 and four music cassettes on July 26.

In the Arbitrator’s view, the incidents of rifling by the grievors would not necessarily warrant their discharge. I am persuaded, based on the preponderance of the evidence, that all of the incidents of rifling involved packages which were already open, and not boxes which had been broken into by the grievors for their own amusement. It goes without saying that that is no excuse for the cavalier behaviour of the grievors, who must appreciate that the property of the employer’s clients is not to be made the object of fun at work. On the other hand, the fact that someone amuses himself for a few minutes in examining the merchandise exposed in a broken package is not scandalous, especially in a workplace where the duties can prove to be monotonous. I judge that these acts would warrant discipline, but something much less than discharge. Given the Arbitrator’s conclusions concerning the misappropriation of goods discussed later in this award, it is not necessary to specify an appropriate level of discipline for these incidents.

The matter of pilfering of goods in the warehouse is, however, more serious. It is evident that an employer who offers a parcel delivery service to the public cannot tolerate the misappropriation of goods in transit by its employees. The facts filed in evidence demonstrate that petty theft or pilfering of goods is a problem in all of the Company’s warehouses including that at Lachine. Suffice it to say that these thefts represent, in general, a cost to the employer of nearly 2 per cent of the value of the merchandise which passes through its warehouses. Given the vastness of the workplace, where direct and constant supervision is impracticable, the theft of goods entrusted to the Company by its clients is a most serious problem.

It is not disputed that the three grievors are guilty of pilfering. Mr. Robidoux relates that, on July 12, he opened a box of peanuts which the Company was forwarding to a K-Mart store. He broke open one of the bags in the box in order to eat a handful of peanuts. After this, Mr. Bélanger and Mr. Lelièvre shared in the snack. According to their evidence, the consumption of peanuts was, at that time, a common practice in the warehouse and they saw nothing wrong in that.

The Arbitrator is inclined to accept that a single act of pilfering of this type, by a good employee of long service, could be deserving of a less severe measure of discipline, especially in the context of a general practice in the shop and a frank admission on the part of the employee. Unfortunately, in the case of the grievors, events did not stop at this point.

According to the facts disclosed at the hearing, it appears that on July 26, Mr. Bélanger, Mr. Lelièvre and Mr. Robidoux each stole a popular music cassette. These audio cassettes were in a box which was destined to a business in the music world, in circumstances where the employees knew that this was a matter of theft.

The grievors attempted to minimize the gravity of their acts. In particular, Mr. Bélanger relates that he had simply played his cassette in a tape player in the warehouse, and did not take it home with him. Mr. Lelièvre relates that, ten minutes after the theft, he felt guilty and, when no one was there, returned his cassette to the box from which he had taken it.

I find Mr. Bélanger’s explanation weak and improbable. It matters little to what use he put the cassette if, in any event, it disappeared forever from the hands of its owner. The suggestion, made by Mr. Bélanger in his evidence, that he did not take the cassette in order to steal it as he already had one at home reveals, to my mind, a strange attitude concerning his obligation towards his employer and the integrity of the goods in the warehouse. His declaration that he never actually took anything out of the warehouse raises in the Arbitrator’s mind serious concern as to Mr. Bélanger’s perception of the rules of the game.

Likewise I cannot accept the evidence of Mr. Lelièvre to the effect that he replaced the cassette which he had taken. Investigator Frank Blandford himself saw the theft of the cassettes and verified the delivery of the box in question to the consignee the next day. His evidence establishes two things to the satisfaction of the Arbitrator. Firstly, that immediately following the theft of the cassettes Mr. Bélanger reclosed and sealed the box with tape. Secondly, that the next day the consignee found that he was missing from the box that same number of cassettes which Mr. Blandford had seen taken the preceding day, including that taken by Mr. Lelièvre. I must therefore come to the regrettable conclusion that Mr. Lelièvre was attempting to mislead the Arbitrator.

Counsel for the Union plead in an impressive fashion arbitral jurisprudence to support of their position and claims for the reinstatement of the grievors. They submit that the pilfering disclosed in evidence does not warrant discharge and that, in light of a number of arbitral awards and at least one published research paper, there is a place to believe that the grievors can be reinstated into their employment without fear of recidivism. Counsel for the Company submits, on the other hand, that the totality of the evidence leaves the honesty of the employees in question in doubt. He underlines the importance of the bond of confidence in an enterprise dealing with the warehousing and transporting of goods.

After serious reflection, and with the greatest respect for that Union’s representation, the Arbitrator has come to the conclusion that the reinstatement of the grievors is not justified in the instant case. Many factors lead to this conclusion. Firstly, this is not a case of a single act of pilferage, but of two occasions in which the grievors acted as a group to misappropriate customers’ goods entrusted to their employer. It is difficult to judge their conduct as exceptional from their usual impeccable behaviour. Secondly, in regard to Mr. Bélanger and Mr. Lelièvre, for the reasons elaborated above, I must conclude that their honesty concerning these incidents is, to say the least, suspect. And Mr. Robidoux, who seems to have been honest and consistent in his admissions since the start of this affair, made certain remarks in his evidence which raise serious doubts as to his appreciation of the gravity of pilferage at work.

A final important factor is the milieu of the workplace and the nature of the enterprise. The Company warehouses and transports the merchandise and goods of others. Its customers have the right to expect that their packages are treated at all times in a secure and proper fashion. The employer therefore has the right, if not the obligation, to take all the necessary measures to protect the property with which it has been entrusted against abuse and theft. That necessarily implies the right to take the disciplinary measures appropriate in order to eliminate and prevent these problems. In light of the particular circumstances of this case, in the Arbitrator’s view, these grievances are to be distinguished from those which deal more commonly with isolated incidents of the pilferage of goods which belong solely to the employer. (See Goodyear Tire Inc. (1985) 18 L.A.C. (3d) 292 [Burkett].)

The grievors are not long service employees. The lack of honesty demonstrated by their participation in two incidents of pilfering within the space of two weeks, aggravated in part by their relatively cavalier attitude vis-à-vis these incidents, has broken the bond of confidence between them and their employer. Given all of the pertinent factors, the Arbitrator must conclude that their discharge by the Company was justified and that in the circumstances there are no mitigating factors which would warrant a reduction of this discipline.

For these reasons the grievances are dismissed.

SIGNED at Toronto this 17th day of September 1990.

(signed) MICHEL G. PICHER

ARBITRATOR