AH – 433
IN THE MATTER OF AN ARBITRATION
CP EXPRESS & TRANSPORT
TRANSPORTATION COMMUNICATIONS UNION
GRIEVANCE RE DISCHARGE OF MARIO ROSARINI
SOLE ARBITRATOR: Michel G. Picher
There appeared on behalf of the Company:
R. M. Skelly – Counsel
L. Béchamp – Counsel
B. F. Weinert – Manager, Labour Relations
C. McSween – Regional Manager, Quebec and the Maritimes
And on behalf of the Union:
G. Marceau – Counsel
K. Cahill – Counsel
J. J. Boyce – General Chairman
M. Gauthier – Vice-General Chairman
G. Lemire – Local Chairman
Appearing for other grievors:
R. Mercier – Counsel
F. Poirier – Counsel
A hearing in this matter was held in Montreal, March 27, 28, 29 and 30 and June 11, 1990. (A verbal decision was rendered on July 24, 1990.)
This grievance concerns the discharge of a probationary employee, without seniority, for unacceptable conduct. The Dispute and Joint Statement of Issue filed are as follows:
After having been arrested on August 17, 1989 by CP Police Officers, Mr. Mario Rosarini was suspended from his employment on August 18, 1989, and subsequently discharged on August 28, 1989.
JOINT STATEMENT OF ISSUE:
Following an investigation held on August 25, 1989, the grievor was dismissed for:
a) Opening a carton containing hockey sweaters on July 18, 1989;
b) Offering drugs to a fellow employee in the warehouse on July 18, 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 fourteen (14) days of the alleged incidents contrary to Articles 8.2 and 8.3 of the Collective Agreement;
c) The grievor did not commit the offences with which he is charged;
d) The investigating officer did not act in good faith;
e) The discharge of the grievor is illegal, unjust and abusive given all of the circumstances.
The Union requests the reinstatement of Mr. Rosarini without loss of seniority or of wages and with all benefits to which he is entitled by the Collective Agreement.
The Company rejects the claims of the Union and rejected the grievance at all steps of the grievance procedure.
The evidence establishes, to the satisfaction of the Arbitrator, that on July 18, 1989, while he was working the grievor opened a box containing hockey sweaters and asked another employee, who unbeknownst to him was a police officer, if he wished to steal it. In light of the declaration made to the CP Police on August 18, 1989, I reject his claim that he did not open the box in question. As far as this incident is concerned, I find more probable and accurate the facts as related by Police Officer Michael Witkowski.
As a newly hired employee, the grievor is subject to the terms of Article 6.2.4 of the Collective Agreement, which reads, in part, as follows:
6.2.4. A new employee shall not be regarded as permanently employed until completion of 65 working days cumulative service. In the meantime, unless removed for cause which in the opinion of the Company renders him undesirable for its service, the employee shall accumulate seniority from the date first employed on a position covered by this Agreement.
It appears to me that in the circumstances, in view of the facts reported by Constable Witkowski concerning the incident of the hockey sweaters, the employer could reasonably come to the conclusion that Mr. Rosarini was undesirable for its service within the terms of the above-mentioned article. In my view, this article gives the Company, in the matter of discharge, a less onerous burden of proof than the standard for just cause which applies in the case of a permanent employee who has acquired seniority.
Furthermore, I cannot accept the intriguing argument of Counsel for the Union to the effect that Article 6.2.4 is null and void because it is contrary to Article 60(2) of the Canada Labour Code. He submits that this article would have the effect of removing from the Arbitrator the ability to substitute a reduction in penalty in a circumstance where a cause for discipline is established and where the collective agreement does not stipulate any particular sanction for the offence in question.
I do not see the effect of Article 6.2.4 of the Collective Agreement in this way. The terms of that article do not prohibit the Arbitrator in any way from substituting a disciplinary sanction less severe, even where it is established that there was cause for discipline and that the employer decided that the cause in question rendered the employee undesirable for its service. The article centres on the question of an employee proceeding towards permanence and the accumulation of seniority. These dispositions do not restrict a new employee’s access to the arbitration of his disciplinary dismissal, such as is provided for in the Canada Labour Code. The Collective Agreement deals with the grievance procedure separately in Article 17. It is, furthermore, strange that the Union pleads such a position when Counsel for the employer acknowledges, on behalf of his client, that Article 6.2.4 only lightens the burden of proof and does not eliminate or reduce the remedial authority of an arbitrator.
Is there any reason to reduce the discipline imposed in the instant case? I believe not. As a new employee, Mr. Rosarini knew that he was working during a probationary period, without permanency. If the facts were otherwise, if for example he deserved discipline for once being a few minutes late and the employer declared him undesirable for its service for this single infraction, there could be reason to justify an arbitral intervention. But when, as in this case, the conduct in question reveals a lack of respect for the property of the employer’s customers and a cavalier attitude to the misappropriation of their goods, I must conclude that the discharge of the grievor is justified.
For these reasons the grievance is dismissed.
SIGNED at Toronto this 17th day of September 1990.
(signed) MICHEL G. PICHER