AH – 442
IN THE MATTER OF AN ARBITRATION
CANADIAN UNION OF TRANSPORTATION EMPLOYEES, LOCAL NO. 6
GRIEVANCE RE GEORGE NAPOLEON ARBITRATION
SOLE ARBITRATOR: H. Allan Hope, Q.C.
There appeared on behalf of the Company:
And on behalf of the Union:
A hearing in this matter was held at Prince George, B.C., on April 21 and 22, 1996.
I – THE DISPUTE
The grievor, George Napoleon, was dismissed from his position as a patrolman based at Lillooet on August 24, 1995. The dismissal was in response to an incident that occurred in the late evening of August 19, 1995. The grievor was placed under arrest by the RCMP after he was observed removing gasoline from a keylock fuel pump located adjacent to the tracks in Lillooet yard. In a subsequent investigation the Railway concluded that dismissal was an appropriate response to the circumstances. The grievor was informed of the Railway’s decision in a letter dated August 24, 1995.
On August 30, 1995, the Union filed a grievance in which it admitted that the grievor’s conduct was deserving of discipline. Its submission was that the penalty imposed was excessive. Its position in the grievance was that the penalty of dismissal was inconsistent with then penalties imposed in other instances of theft.
The Union urged in the grievance that a one-week suspension should be substituted for dismissal. It took a similar position in these proceedings in the sense that it urged that while the conduct of the grievor justified the imposition of discipline, it did not justify dismissal and that he should be reinstated.
The facts are not in serious dispute, but there was a significant dispute between the parties with respect to the inferences to be drawn from them. The Railway saw the facts as supporting the finding that the grievor, having formed an intention to steal the gas, took steps to disguise what he was doing so as to avoid discovery. In its view the grievor, having been discovered, resisted explaining his actions to his supervisors until he was questioned in an investigative interview on August 24, five days after the incident occurred. The Railway saw those facts as constituting just cause to dismiss the grievor.
The Union said that the facts invited the inference that the grievor took the gasoline without considering it as theft. He took no steps to disguise his actions, said the Union, and he explained himself and gave the reasons for his actions to the Railway at the earliest opportunity. The grievor, said the Union, lacks confidence and is diffident in manner. His reaction when confronted with how his taking of the gasoline was viewed was one of embarrassment and self-consciousness, said the Union. It said that rather than confronting the issue, he adopted a characteristic pattern of reclusiveness. However, said the Union, he readily gave his explanation when asked by the Railway. In its submission, the facts support some form of discipline less than dismissal.
II. – THE FACTS
The grievor commenced his employment on June 12, 1987 as a sectionman in the Lillooet section. At the time the grievance arose he resided in Fountain, a community located 10 miles east of Lillooet. On the day in question he was without transportation and obtained a ride to work in the automobile of a friend who resides in Bridge River, a community located ten miles west of Lillooet. His friend operates a 1980 Mercury Marquis. The evidence was not clear with respect to whether the grievor borrowed his friend’s vehicle or whether his friend accompanied him. In either case, the vehicle would be required to travel to the grievor’s home in Fountain and to return to Bridge River. There was insufficient gasoline in the vehicle to complete that commute.
The grievor decided to take the gasoline when, in effect, he faced being stranded in Lillooet late at night. The grievor’s hours of work that day were 14:30 (2:30 p.m.) to 22:30 (10:30 p.m.). It was approximately 11:00 p.m. when the grievor learned that his friend’s vehicle did not have sufficient fuel to complete the commute to Bridge River and Fountain. The grievor was without funds and, in any event, there were no service stations open at that hour in Lillooet.
In his capacity as a patrolman, the grievor had a key that gave him access to the keylock tank in the Lillooet Yard and he elected to use it to obtain the gasoline he needed to get home.
To facilitate obtaining the gasoline, the grievor drove the Mercury Marquis to the driveway of Cabin No. 12 at Cook’s Cabins, a facility located adjacent to the BCR tracks. The keylock gas pump is located across the railway tracks from the cabins. The occupant of Cabin No. 12, who was identified in the proceedings as the “complainant”, observed the grievor make two trips to the pump with a five-gallon plastic container and return to pour its contents into the tank of the vehicle. At 11:40 p.m. the complainant contacted the Lillooet detachment to advise them of her observations. She gave the R.C.M.P. a description of the vehicle, including its licence number, and an accurate description of the grievor.
There was a minor discrepancy between the description of the vehicle and its licence number given by the complaint and its actual description and licence number. However, Constable B.G. Struthers attended and was able to recognize the vehicle and the grievor without hesitation. He immediately placed him under arrest. The grievor did not deny having taken the gasoline, although it did not appear that he was asked to make a formal statement. The implication was that it was simply accepted that he had taken the gasoline.
The Railway called evidence from Constable Struthers who filed a copy of a “Report to Crown Counsel” which was dated September 1, 1995 and which was submitted on September 10, 1995. I pause to note that while the report was admitted for the purpose of permitting Constable Struthers to refresh his memory, it was not admissible as proof of the facts recorded in it. I also note that it is not clear whether the Railway received a copy of the report at the time it was forwarded to crown counsel. In any event, it was clear that the report was not prepared until two weeks after the incident and eight days after the grievor had been dismissed.
Returning to the narrative, the evidence of Constable Struthers and the facts outlined in his report were consistent, in the main, with the evidence of the grievor. The grievor said that he went to the location at Cook’s Cabins because it provided the most immediate access to the gas pumps. He said that he did not view his actions as amounting to theft and that he made no attempt to conceal his presence or his taking of the gasoline. In particular, he parked in a well-lit area in front of Cabin No. 12 and walked down an existing path to the gas pump. The grievor said that he made no effort to disguise his presence or his movements.
As stated, those aspects of his evidence were consistent with the evidence of Constable Struthers and with his report. Constable Struthers noted that the area was well-lit and, by implication, that the occupant of Cabin No. 12 had no difficulty in identifying the grievor or his vehicle or his observing his movements. Further, there was no indication in his evidence or his report that the complainant had made any observations indicating that the grievor was attempting to hide his presence or his actions. There was no suggestion that the minor discrepancy in the licence number and identification of the vehicle arose because of any difficulty the complainant had in making observations. In fact, as was made clear in the evidence of Constable Struthers, he simply accepted that the grievor had been taking gasoline from the pump.
Constable Struthers’ investigation, which appears to have been somewhat perfunctory, consisted of stopping a vehicle that met the description he had received. Immediately after the vehicle was stopped the grievor was placed under arrest on a charge of theft and was “chartered and warned by card”. Having placed the grievor under arrest, Constable Struthers asked the grievor to open the trunk where he found a gasoline container fitting the description he had received and which had the appearance and odour of fresh gasoline around its spout. On the evidence, the grievor was co-operative and, as stated, there was no recorded attempt to deny that he had taken the gasoline.
There were some differences in the evidence of the grievor and Constable Struthers. The recollection of the grievor was that he had stated to the constable that he did not consider that he was stealing gasoline because he had a key to the pump and because he was authorized to obtain gasoline from it. He said that he produced his key and showed it to the constable. The constable could not recall that comment or the production of the key. His recollection was that the grievor had said “everyone does it but nobody (is) supposed to know about”. The grievor could not recall making that comment. In any event, whatever passed between the grievor and the constable, the clear implication was that the grievor did not deny taking the gasoline.
In view of the length of time that has passed since the events, the appropriate course is to rely on the facts recited by the Employer in its letter of dismissal and the interview notes upon which it was based. The letter reads in substance as follows:
On August 20, 1995 at 0045 hrs the BC Rail Police were notified by the Lillooet detachment of the R.C.M.P. that you had been arrested for theft of gasoline from the Lillooet Speeder Shed. You admitted to the R.C.M.P., and later to Bruce Craiggs, Supervisor Track Patrolman, (August 24th) that you knowingly took approximately 20 [litres] of gas from the BC Rail Speeder Shed without authority to do so. You also admitted that even though you were aware that your Supervisor was available to you by phone 24 hrs a day, you chose not to seek his permission. During the course of the interview with Bruce Craiggs, you confirmed that you were fully aware that taking company property without authority to do so, constitutes theft of company property. Theft from the employer will not be condoned by BC Rail. Your actions of August 20, 1995 constitute theft of company property. You are hereby advised that as a result of your actions on August 20, 1995, your services with the Railway are terminated effective August 25, 1995. Your termination is for just cause as a result of stealing company property (20 litres of gas).
As indicated, that letter followed upon an interview with the grievor conducted on August 24, 1995. That interview followed a preliminary discussion between the grievor and Gernando Correia, on August 21, 1995. Mr. Correia was the relief manager of track maintenance. He resides in Lillooet and was first informed of the incident formally on August 20. He obtained more precise details on August 21 from a Railway Police official. His discussion with the grievor occurred at approximately 9:30 a.m. on August 21 when he encountered him by chance at the railway station in Lillooet. Mr. Correia informed him that he wanted to meet with him to discuss the incident. The grievor agreed and an interview was fixed for 11 a.m. At 10:30 a.m. the grievor came to Mr. Correia’s office and said that he wanted Union representation in the meeting. On that basis the interview was fixed to proceed on august 24 at 9 a.m.
The interview was conducted by Bruce Craiggs, the supervisor of the track patrol. A record of the interview was filed in evidence. The notes of the interview indicate that the grievor was informed that its purpose was to inquire into the circumstances “regarding his being charged by the police for theft on August 20, 1995”. The grievor was invited to explain the circumstances and the notes of his explanation read as follows:
I have arranged with a friend for a ride to and from work as my vehicle wasn’t working and my wife was out of town. I was broke and needed gas to get home to Fountain and my friend to return to Lillooet. At the time, I felt I was borrowing the gas and told the cops the same thing. Do you understand what is meant by theft? Reply “Yes”. Do you understand that … taking the gas constitutes theft in the eye’s of the company. “Yes but I didn’t feel it was at the time”. What has changed your mind between now and the other night? “I didn’t think everyone would get so excited about it”.
In his evidence Mr. Correia said that the Railway does not tolerate theft. He went on to say that theft was not a problem on the railway. In particular, he said that theft of gasoline was not a problem in Lillooet or elsewhere and that he considered the incident involving the grievor to be an isolated one. His evidence with respect to his discussion with the grievor indicated that it was brief and was directed primarily at arranging an interview. He did not indicate that the grievor had refused to give his reasons for having taken the gasoline.
Mr. Craiggs confirmed that employees are informed that theft is not tolerated. Both he and Mr. Correia said, in effect, that the grievor, if he was truly concerned about being stranded, had the option of contacting either of them for assistance. They pointed out in that context that all employees in Lillooet are made aware that they can contact either of them, at any time, day or night, and on weekends. They said that the grievor would have been given assistance in resolving his problem if he had contacted them. The grievor agreed that he was aware that he could have contacted either official to obtain assistance. He said he did not think to contact them because he was embarrassed by his predicament and because he did not think that taking the gasoline was significant or that it would trigger the reaction that result from it.
During his interview with Mr. Craiggs, the grievor was asked why he thought that taking the gasoline was the equivalent of borrowing it and his reply was that he thought he could pay for it by withholding an amount from a future overtime claim. That led to questioning about whether the grievor had taken gasoline before and whether other employees had engaged in similar practices. That exchange was recorded in the interview notes as follows:
How much overtime have you not claimed in repayment of gas taken?
“Never did it before”.
When did you realize you needed gas to get home?
“About 20 minutes before I got picked up by the police”.
Are you aware of any body else doing the same thing?
Are you sure about that?
I digress to note that the evidence touched on the possibility that the grievor was undergoing personal problems at the time. That issue was raised by the Railway in the interview in the following terms:
Are you having any problems outside the work place?
“I have sought help with B.C. Rail’s J. McCann about year ago and went as far as filling out papers but never went thru with it. I left a message with John McCann two days ago”.
That exchange was referred to in the evidence but its contest was not entirely clear. The implication was that the grievor was seeking to access the Railway’s employee assistance plan. However, that issue was not developed further and the inference to be drawn from the bare facts is that the grievor, at that time, was undergoing some form of personal problem that was affecting him adversely in terms of his employment. In any event, the position of the Union during the interview was articulated by the grievor’s representative, Fred Leach. That exchange was recorded in the notes of the interview as follows:
Bruce then asked Fred Leach for his comments. Fred replied “I would like you to know that he did not hide the vehicle or his actions at the time of taking the gas. I ask for mercy for George. He regrets his action and is suffering great remorse. When assessing discipline I hope that it will be fair and comparable to suspensions given employees for the same past offences.”
The grievor confirmed the statement he had made. He repeated his regret for his actions and that he was remorseful. He said that he understood that his actions amounted to theft and, in effect, that he could be trusted to avoid similar conduct in the future. He emphasized that he did not view his actions as theft at the time and did not anticipate how his actions would be viewed by management.
III – POSITION OF THE RAILWAY
The Railway submitted that the facts support a finding that the grievor had set out to steal gasoline with knowledge that he was committing an act of theft. Its submission, in effect, was that the fact that the grievor parked at Cook’s Cabins rather than the Railway’s parking lot across the tracks adjacent to the pump was evidence of an attempt to conceal his presence and his actions. The Railway said that the very fact that the grievor did not attempt to contact either Mr. Correia or Mr. Craiggs to obtain an emergency supply of gasoline supported the inference that he knew that his actions amounted to theft. By his own admission, said the Railway, he knew that he could have obtained assistance through simple phone call and his failure to do so invites the conclusion that he intended to steal the gasoline.
The Railway took the position that the grievor worked in a position of trust in the sense that he was given access to gasoline and, due to limited supervision, the Railway was required to accept on trust that he would not abuse that access. It called evidence to the effect that patrolmen in current operations have a greater opportunity to abuse their access to gasoline. In particular, patrolmen now use hi-rail vehicles capable of operating on roads or tracks and, in addition to access to Railway supplies, employees are supplied with a credit card which gives them the right to purchase gasoline from conventional service stations. The position of the Railway was that dismissal is an appropriate response where the employee concerned acts in breach of trust in circumstances where trust is an essential element in the employment relationship. In that same context the Railway sought to rely on a minor criminal record disclosed to the Railway by the R.C.M.P. There were two offences that occurred many years before his employment, one in 1974 and one in 1983.
In further support of the dismissal, the Railway adduced evidence of the grievor’s discipline record. It consisted of offences relating to absenteeism and a recent written warning given on August 8, 1995 with respect to a failure to complete a work assignment. There were four prior infractions recorded between November 23, 1990 and June 23, 1995, all of which related to attendance problems, the last of which attracted a five-day suspension. The position of the Railway was that the discipline record supported the inference that the grievor was less than satisfactory employee.
The Railway also urged that the facts supported an inference that the grievor had failed to account for his conduct in a forthright manner and, in effect, that he had not provided an explanation for his conduct. It noted in particular that the grievor was scheduled to work the day following the incident and that he failed to report and account for his actions. It noted further that the grievor did not tender an explanation when he encountered Mr. Correia on August 21 and that the first time offered an explanation was in his interview on August 24, being the day of his dismissal. In effect, the Railway interpreted the conduct of the grievor as constituting a pattern of deceit and an attempt to deny that his intention was to steal the gasoline. In advancing that position the Railway relied on the arbitral principles addressed in Brown and Beatty, Canadian Labour Arbitration, 1996, para. 7:3310 @ p. 7-74 to 7-78.
In terms of the particular facts, the Railway relied on the decision in MacMillan Bloedel Limited, Harmac Division and Pulp, Paper and Woodworkers of Canada, Local 8, November 2, 1989, unreported (Kelleher); University of Saskatchewan and Canadian Union of Public Employees, Local 175 (Juravinski Arbitration), February 16, 1986, unreported (Stromberg); and Canadian Pacific Limited and Brotherhood of Railway Carmen of Canada (G. Agnew Arbitration), July 25, 1989, unreported (Picher). That line of authority deals with employees who were dismissed for actions involving dishonesty and who engaged in a pattern of deceit designed to deny or rationalize their conduct. The Railway was of the view that the same pattern of conduct was present in the actions of the grievor. Its submission was that the facts disclosed just cause for his dismissal.
IV – THE POSITION OF THE UNION
As stated, the Union did not deny that the conduct of the grievor was deserving of discipline. Its submission, in effect, was that the facts failed to support a finding that the grievor intended to steal gasoline in the sense urged by the Railway. Its positions was that he had a need for the gasoline and took it with no conscious intent to steal and with no attempt to disguise his actions. He drove to a well-lit area at Cook’s Cabins and took what he understood to be the shortest route which would permit him to obtain the gasoline and put it in the vehicle’s gas tank. The area was well-lit, said the Union, and anyone in the area, including Railway employees, would immediately detect what the grievor was doing.
The Union agreed in retrospect that the grievor’s actions did constitute theft and were thus deserving of discipline. Its submission, in effect, was that the grievor took the gasoline without authorization but with no perception that it would be seen as theft or that it would be treated as seriously as it was treated. In its grievance the Union raised a question about whether dismissal was in accord with the Railway’s consistent policy in response to theft. That same issue was raised by Mr. Leach in the investigative interview. The issue was not addressed specifically in the hearing but it was implicit in the Union’s submission that it did not see the facts as constituting an overt act of theft that would justify the extreme penalty of dismissal.
The submission was that the grievor’s eight years of employment was not short service and that his discipline record was of recent origin and was tied to the rigours of the shift work that is required of patrolmen as compared with the regular shift worked by employees holding positions on the section. The Union also dismissed the grievor’s prior criminal record as minor and on the basis that it had arisen many years prior to his employment. In its view, the facts supported the grievor’s reinstatement.
V – THE DECISION
In British Columbia the right of an employee to an independent arbitral review of a dismissal is statutory in origin and does not rely on any express or implied provisions of a collective agreement. In fact, parties to a collective agreement cannot deprive employees of their statutory rights. Further, the review of a dismissal by an arbitrator must be in accord with the industrial relations principles inherent in the Labour Relations Code. Those principles and the appropriate standard of review were addressed in Wm. Scott and Company Limited and Canadian Food and Allied Workers Union, Local P-162 (1977) 1 C.L.R.B.R. 1 (Weiler).
The legislation under review in that decision appears on p. 1, being s. 98(d) of the Labour Code. A similar provision appears in the current Labour Relations Code and Wm. Scott and Company is viewed generally in this province as definitive with respect to the industrial relations principles that govern arbitrators in the review of a dismissal. Of particular interest in this dispute is the recognition by the Board on p.3 of that decision that the “discharge of an employee under collective bargaining law” is viewed as more detrimental to an employee than a dismissal under the common law and that a pattern of progressive discipline, while not essential, was expected as a prelude to dismissal.
In that context the Board noted on p.3 that employers under collective bargaining law have available to them “a broad spectrum of lesser sanctions” that provides a medium for responding to misconduct. On p.3 the Board wrote:
Because the employer is now entitled to escalate progressively its response to employee misconduct, there is a natural inclination to require that these lesser measures be tried out before the employer takes the ultimate step of dismissing the employee, and thus cutting him off from all of the benefits associated with the job and stemming from the collective agreement.
On p. 6 the Board considered the implications of the principle of progressive discipline in terms of serious acts of misconduct, including dishonesty. Its position was that it is wrong in principle to commence the review of a dismissal with the assumption that a particular act of misconduct, by its nature, will constitute just cause for dismissal. The Board wrote on p.6 as follows:
The point of that over-all inquiry is that arbitrators no longer assume that certain conduct taken in the abstract, even quite serious employee offences, are automatically legal cause for discharge. (That attitude may be seen in such recent cases as Phillips Cables (1974), 6 L.A.C. (2d) 35 (falsification of payment records); Toronto East General Hospital (1975), 9 L.A.C. (2d) 311 (theft); Galco Food Products (1974), 7 L.A.C. (2nd) 350 (assault on a supervisor).) Instead, it is the statutory responsibility of the arbitrator, having found just cause for some employer action, to probe beneath the surface of the immediate events and reach a broad judgement about whether this employee, especially one with a significant investment of service with that employer, should actually lose his job for the offence in question.
A careful reading of Wm. Scott and Company is necessary in a review of a dismissal based upon an allegation of theft because there has been a division of opinion in this province with respect to the standard of review to be applied in such cases. That division of opinion was addressed by Mr. Kelleher in MacMillan Bloedel Limited. Commencing on p. 14, Mr. Kelleher reviewed what may be described as the “camel through the eye of the needle” test. In that test, a dismissal for theft must be upheld unless the arbitrator is able to conclude that the incident of theft was a single offence; that it occurred on the spur of the moment; that the employee “truly and openly acknowledged” the theft, that the acknowledgement was made “in an honest effort to show proper contrition”, and that the acknowledgement was accompanied by an offer of restitution.
Those conditions are described in that line of authority as conditions precedent to an exercise of the jurisdiction vested in an arbitrator under the Labour Relations Code. Mr. Kelleher rejected that reasoning in favour of a consideration of “whether the employment relationship can be restored”. On p. 17 he cited the following passage from one of his prior decisions:
In the first place, theft is among the most serious of industrial offences. Second, the actual value of the goods stolen is no especially relevant. Third, dismissal is no longer to be considered as the automatic response to a detection of theft. The question in each case is whether the employment relationship can be restored. Fourth, where the grievor is confronted and is untruthful in denying the offence that is an exacerbating factor to be considered. Beyond that, each case must be decided on its own facts: the circumstances of the theft itself, the grievor’s demeanour in giving evidence, and so on.
A detailed review of the industrial relations principles implicit in the Wm. Scott and Company decision was done by Arbitrator Dorsey in Re Juan de Fuca Hospital Society (Aberdeen Hospital) and Hospital Employees’, Union, Local 180, (1988) 35 L.A.C. (3d) 289. That decision dealt with a line of authority that addresses the question of whether patient abuse is an offence in the health care industry that compels dismissal as the only appropriate response. Recorded in the decision is the view that the principles in Wm. Scott and Company require an arbitrator to determine the appropriateness of an employer’s disciplinary response in terms of the particular facts and whether the employment relationship is capable of being restored.
An examination of the facts in the cases relied on by the Railway invites the conclusion that they involve acts of misconduct which were materially different from the acts proven against the grievor in this dispute. In particular, the three decisions all involved deceit on the part of the employees who were dismissed. In the MacMillan Bloedel Case, for example, the grievor had stolen gasoline in two five gallon cans that he had brought to work for that purpose. When confronted, he denied having stolen the gasoline and insisted that he had brought it from his home. The Railway urged that the facts in that case were similar to those present in this dispute. However, it was implicit in the facts that the grievor in that case was under suspicion and that an investigation, including a surveillance of his vehicle, was initiated in response to that suspicion. In addition to the stolen gasoline, the grievor had stolen 31 feet of chain, two electrical sockets, three electrical plug-ins and a 12 volt licence plate light connector, all in new condition.
As stated, the grievor in that dispute denied that he had stolen the gasoline and his explanation for the other items was that he found them in a garbage can. The following day the grievor admitted that his initial statement was untrue. He said that he had taken the gasoline because he needed it to get home. His explanation was rejected on the basis that it was more gasoline that was required and, in any event, there were service stations open to which he had access. Mr. Kelleher found on the facts before him that the grievor had demonstrated a lack of candour which mitigated against his reinstatement.
University of Saskatchewan involved circumstances in which the grievor, a caretaker foreman, was under suspicion and was observed stealing money. When confronted he denied his actions until it was disclosed to him that he had been recorded on video tape taking the money and that it included bills that had been marked. Further, he was in a supervisory capacity and was required to supervise the activities of a large work force of custodians. In CP Limited, the grievor stole 32 litres of antifreeze. His theft was discovered in a routine search of his vehicle as he was leaving the employer’s premises and the grievor’s explanation was that he kept the antifreeze in order to carry out his duties. That explanation was rejected by the employer. The explanation was repeated in the hearing before Mr. Picher and he also found that it lacked credibility.
By contrast, the facts in this dispute support the assertion of the grievor that he confronted a circumstance in which he had insufficient gasoline to return home and, without thought for the implications of his actions, used his key to obtain gasoline for the trip. The Railway suggested in that contest that the facts were similar to those present in the MacMillan Bloedel Case. However, the only similarity is the coincidental fact that, among the various items stolen by the grievor in that case was a quantity of gasoline. In that dispute the grievor’s explanation was held to be incapable of belief. Here the explanation given by the grievor was consistent with the proven facts and supported his assertion that he took the gasoline on impulse because he was stranded in Lillooet late at night.
The onus on an employer in a dismissal is to establish that it had just cause to impose the penalty selected. That principle was first addressed by Professor Laskin as he then was in Canadian General Electric Co. Ltd. Vs. United Electrical, Radio and Machine Workers, Local 524 (1954) 5 L.A.C. 1939. On p. 1941, Professor Laskin wrote:
It is clear from this article that the company’s power to discipline is subject to grievance in respect of its reasonableness. In the Board’s view, “reasonableness” here covers not only the question of whether a proper ground exists but also the nature and severity of the sanction.
That view reflects an arbitral consensus which was re-entry confirmed in Re Simon Fraser University and Association of University & College Employees, Local 2, (1991) 17 L.A.C. (4th) 129 (Munroe). Mr. Munroe wrote as follows on p. 135:
I take it to be well settled that in a discipline case, the onus rests with the employer to show not only that just or proper cause existed for the imposition of a disciplinary sanction, but also for the imposition of the particular penalty selected.
Here the Railway failed to adduce facts which proved on a balance of probabilities that the grievor formed an intention to steal gasoline, that he took steps to disguise his actions and that he was deceitful in confronting the circumstances and dealing with them. Rather, the facts support the grievor’s explanation that he took the gasoline without considering the implications of his actions because he needed it to get home. That is not to say that his actions do not constitute theft or that they are not serious. Any act of theft is viewed by the authorities as being extremely serious and deserving of significant discipline which, in many cases, means dismissal.
However, in terms of the question of whether the employment relationship can be restored, there was no indication of prior misconduct on the part of the grievor that called his honesty into a lesser form of discipline that bring home to him the seriousness of his conduct and the threat it poses to his continued employment. I note in that context that the grievor’s criminal record does not provide a basis for concluding that he could not be trusted. He had been employed for many years after those offences with no suggestion that he was not trustworthy.
The offences of theft, as is the case with any category of misconduct, embraces a factual spectrum and the discipline imposed must reflect the particular facts. Firstly, in measuring the facts, an arbitrator must keep in mind that a dismissal for theft carries with it extremely serious consequences. That fact was addressed by Professor J.M. Weiler in Re B.C. Telephone Co. And Telecommunication Workers’ Union, (1978) 18 L.A.C. (2d) 225 at pp. 229-30:
… a discharge or discipline for &criminal cause 8 carries with it connotations of corruption, illegality, or moral turpitude not apparent in other cases of industrial discipline. “Criminal cause” involves a significant loss of reputation and the social effects and stigma of such a sanction places a permanent blot on the employee’s record that is qualitatively different than in the context of a non-criminal discharge or discipline. …
Arbitrators now recognize that a discharge on criminal charges (e.g., theft, assault) creates a much more significant impediment to that employee’s ability to find other work than would be the case if that employee had been discharged for non-criminal reasons such as absenteeism, insubordination, or sleeping on the job.
Hence, a high standard of proof is required with respect to each aspect of an allegation of theft. In particular, the assertion by the Railway that the grievor formed an intention to steal gasoline and that he took steps to hide his actions required proof to a high degree of probability. Moreover, the penalty selected must reflect the proven facts, not the Railway’s perception of them. In terms of penalty, the reasoning of Mr. Munroe in Simon Fraser University applies. On p. 135 he wrote:
(I)mplicit in the modern just cause standard is the notion that for most offences in most circumstances, an employer will take the path of corrective discipline prior to resorting to the ultimate sanction of a severance of the employment relationship. It follows that in the usual run of cases, “… if an employer is going to deviate from the accepting approach of progressive discipline he must at the very least come forward with clear and compelling justification for discharge as the only response reasonably available to him”: see Palmer, Collective Agreement Arbitration in Canada, 2nd ed. (1983), p. 298.
Finally, the standard to be applied by an arbitrator in addressing the question of reinstatement was addressed in Re British Columbia Railway Co. and Canadian Union of Transportation Employees, Local 6 (1988), 29 L.A.C. (3d) 353, citing arbitrators Vince Ready and Bruce McColl, as he then was, in the following passage appearing on p. 369:
The basic issue to be addressed in the arbitral review of a dismissal is whether the facts support a finding that the conduct of the grievor was inconsistent with a restoration of the employer-employee relationship: see Re Raven Lumber Ltd. and I.W.A. Local 1-363 (1986), 23 L.A.C. (3d) 356 (Munroe); Re B.C. Telephone Co. and T.W.U. (1978), 19 L.A.C. (2d) 98 (Gall) at p. 103 (application to quash award 93 D.L.R. (3d) 603, 19 L.A.C. (2d) 353N), and Finning Tractor & Equipment Co. Ltd. (1984), unreported (McColl), as cited in B.C. Rail Ltd. and U.T.U., Locals 1778 & 1932 (Mazur) (July 21, 1986, unreported (Ready)). On p. 11 Mr. Ready cited the following extract from Finning Tractor:
The issue is not whether or not the grievor should be given a further chance to rehabilitate himself, or whether the employer is compelled to permit the grievor an opportunity of access to such rehabilitation, but whether or not, having regard to all of the circumstances, the employment contract is capable of restoration to the benefit of both parties. That is an objective test based upon the evidence before the tribunal charged with making the decision.
On the facts proven in this dispute, the grievor acted impulsively in taking the gasoline without consideration for the implications. His actions constituted theft but were mitigated by the facts and do not support a conclusion that the grievor is dishonest and cannot be trusted to avoid similar actions in the future. On that basis the grievance is granted in part, the grievor is entitled to be reinstated without loss of seniority. However, the grievor did not establish an entitlement to compensation. His actions were serious and the Railway is entitled to have the message brought home to the grievor and to other employees that any act of theft carries with it extreme consequences. In the result, the grievor is entitled to reinstatement without loss of seniority but without compensation for his lost wages.
Dated at the City of Prince George, in the Province of British Columbia, this 7th day of May, 1996.
(signed) H. ALLAN HOPE