AH 465: REYNOLDS, P.G.

AWARD

This arbitration concerns the discharge of an employee for alleged theft. Following a disciplinary investigation, the grievor received the following notice from the company:

Please be advised that you have been DISMISSED for theft of Company property as evidenced by your unauthorized use of Company issued credit cards for the purchase of fuel and other goods for personal use and for the unauthorized possession of Company goods at your place of residence, in the United Counties of Stormont, Dundas, Glengary from January 1996 to January 1997 inclusive. (Tab 17)

The Union submits that the grievor, at no time, engaged in dishonest activity, that he did not purchase goods or fuel for his personal use, and that all of the purchases that he made were in proper pursuit of his obligations as an S&C Signal Maintainer.

Hired in May of 1977 the grievor was an employee of some twenty years service at the time of the incident giving rise to his dismissal. It is not disputed that he was an employee of good prior service, having only incurred minor discipline on two occasions over the period of some twenty years, and that his record was clear at the time of the investigation leading to the termination of his services.

A resident of Finch, Ontario, Mr. Reynolds was responsible for maintaining signals on trackage totalling 112.2 kilometres. His responsibilities involved the use of a one ton Chevrolet high rail truck. It is common ground that as he was on call for emergencies twenty-four hours per day, seven days a week, the truck was at all times in his possession, and kept at his home when he was not on active duty.

As part of his responsibilities, like other S&C Maintainers, Mr. Reynolds was authorized to make certain purchases, both for the fuelling and maintenance of his vehicle, and for tools and equipment used during the course of his work. To that end he was assigned two credit cards. The first, an ESSO credit card, allowed him to make gasoline and oil purchases at the Monkland Mini Mart, a non-service station with gas pumps located centrally within his territory. He also had the use of a second credit card, issued by G.E. Capital Fleet Services Credit Card, which could only be utilized for the purchase of gasoline, oil and related automotive products. Finally, like other maintainers, Mr. Reynolds had an account in a local hardware store at which he was authorized to purchase tools and equipment necessary for his work.

A routine audit of the credit card expenditures submitted by the grievor for purchases related to fuel and oil for his truck, apparently made in early 1997, caused the Company substantial concern. Based on a comparison of fuel receipts to the odometer reading on the grievor’s truck taken over a period of eleven months, it appeared that Mr. Reynolds was operating at a fuel mileage rate of 1.25 kilometres per litre. The Company submits that he should have been operating at a fuel consumption rate of 4.51 kilometres per litre, the rate which was achieved by another driver using the same vehicle after the grievor’s removal from service.

It is common ground that certain purchases made by Mr. Reynolds at the Monkland Mini Mart which were not fuel or oil were nevertheless coded on the credit card slip as “oil change”. The Company’s investigation revealed, and indeed the grievor does not deny, that a good number of purchases made at that location involving other than automotive related products were declared as an “oil change”, apparently because the G.E. credit card would not honour a purchase made under any code other than one relative to automotive supplies. According to the grievor’s account, he periodically needed to purchase other items such as gloves, WD 40, antifreeze, chainsaw oil, batteries, truck fuses, fuses for signal equipment, and the like. According to Mr. Reynolds’ account, purchases of that kind made at the mini mart were coded “oil change” to enable him to use the G.E. credit card. The Company’s investigation appears to confirm that explanation. Statements obtained from both the owner and the clerk of the Monkland Mini Mart by a CP police investigator affirm that the purchases made by Mr. Reynolds at that location were not for items of personal consumption such as food or cigarettes.

The Company nevertheless rejects that explanation. Its representative notes that on least one occasion the amount of a purchase registered as an “oil change” corresponds to the price of a carton of cigarettes. Further suspicion by the employer is prompted by the fact that two items of company property were found at the grievor’s residence: a desktop 16 inch fan and a shop vacuum, both of which had been purchased through a general purchase order on the company’s account.

The grievor denies any wrongdoing whatsoever. According to his evidence, the truck which was provided to him was a consistent “gas guzzler”. The fuel inefficiency which it registered eventually lead to a major repair to the fuel system at a truck dealership. According to Mr. Reynolds’ account, it was the fuel inefficiency of the truck itself, coupled with the distance he was required to travel, and the fact that because of its idiosyncrasies he virtually never turned the truck off during his working hours, which led to the high level of fuel consumption. Further, he indicated at the hearing that he occasionally purchased fuel from the Mini Mart which he did not put into his vehicle’s fuel tank. According to his evidence, because he sometimes could not get fuel after closing hours when he was compelled to travel on emergency calls, he made use of a 300 gallon underground tank located at his work headquarters. He relates that he periodically filled canisters of gasoline at the Mini Mart which he emptied into the underground fuel tank, to give himself the ability to access fuel at hours when the gas station was closed.

The Company’s representative submits that the totality of the evidence adduced, and in particular the improved mileage performance registered by two employees who succeeded Mr. Reynolds in the use of the same truck, confirms the Company’s assertion that he must have used the Company’s credit card for the purchase of fuel and other items directed to his own personal use. Counsel for the Union responds that in a matter such as this, where the allegation is one of criminal conduct, the standard of proof must be such as to establish the grievor’s wrongdoing on the basis of clear and cogent evidence. That, he submits, is plainly not achieved on the basis of the material filed by the Company, in light of the explanations provided by Mr. Reynolds, some of which are documented.

The arbitrator must agree with counsel for the Union with respect to the burden and standard of proof in a case of this kind. It is well established in Canadian arbitral jurisprudence that the severity of an employee’s wrongdoing, and the gravity of the consequences that may flow from it, can give rise to a higher standard of proof, generally commensurate with the infraction alleged. The summary termination of an otherwise good employee of twenty years’ service for alleged theft would plainly require the satisfaction of such a standard. (See, e.g. Canada Post Corp (1996), 56 L.A.C. (4th) 353 (Chertkow); Alberta Healthcare Ass’n. (1993), 37 L.A.C. (4th) 215 (Beattie); York University (1991 ), 23 L.A.C. (4th) 303 (Dissanayake); Indusmin Ltd. (1978), 20 L.A.C. (2d) 87 (M.G. Picher).)

What, then, does the evidence before the arbitrator disclose? Firstly, it is significant to note, as stressed by counsel for the Union, that all of the purchases made by the grievor, many of which appear under the fictional code “oil change”, were made openly and in a manner that would plainly come to the attention of the Company by scrutiny of the grievor’s credit card records. I am satisfied, on the balance of probabilities, that there was no attempt at subterfuge on the part of Mr. Reynolds in the manner of using fictional codes for the purchase of non-gasoline or oil items on his G.E. or ESSO credit card at the Monkland Mini Mart. I am reinforced in that conclusion by the statement provided to the Company’s police investigator by both the owner of the mini mart and a clerk employed at that location. Each of them confirmed, without contradiction by anyone, that the “oil change” code was used to enable Mr. Reynolds to purchase other materials necessary for his work, and that he never purchased personal effects such as food or cigarettes at that location using a company credit card. After close examination, the arbitrator is compelled to conclude that the Company has not established, on the balance of probabilities, that Mr. Reynolds purchased anything other than gasoline, oil and materials necessary to the fulfillment of his duties as a S&C maintainer by the use of either of the two credit cards entrusted to him.

Nor am I satisfied that the Company’s evidence establishes that the grievor misappropriated fuel for his own use. The Company’s entire case in that regard rests on the high rate of fuel consumption registered for the grievor’s vehicle. Mr. Reynolds confirms the Company’s figures with respect to the fuel consumption. In support of his explanation, however, the Arbitrator considers it significant that the fuel inefficiency of the truck was known, at least for some time during 1996, and that as a result in January of 1997 major fuel system repairs were made to the vehicle at Cornwall Motor Sales, a Chevrolet dealership. The Union tendered in evidence the following letter from the dealership shop foreman, dated January 13,1999:

To whom it may concern:

On 01l09/98 CPR Railways brought their vehicle, 19913500 Series Truck, in for service. It was stalling, running extremely rough and had no power during my road test.

During my diagnostics I found many problems: EGR valve sticking open, distributor shaft & housing badly worn, timing retarded 12 degrees because of warn (sic) chain and gears. Also, the throttle body gasket was leaking and oxygen sensor broken off.

With these problems I listed above, it would be very hard on fuel because it would only be running at roughly 25% efficiency. We completed all repairs after getting authorization and I road tested it. All was good and running very well.

Sincerely,

Cornwall Motor Sales (1989) Ltd.

Tracy Gadbois

Shop Foreman

(emphasis added)

As can be seen from the foregoing, in the estimate of the shop foreman would correspond to the vehicle operating at roughly 25% fuel efficiency. That report is to some degree substantiated by the Company’s own records. A comparative account of fuel consumption filed within its brief confirms that immediately afterwards Mr. Reynolds’ vehicle registered better than a 100% improvement in its fuel consumption from January to February of 1997. While it is true that the employees who succeeded Mr. Reynolds in the operation of the truck registered lower rates of fuel consumption, there is no evidence as to the conditions under which they worked, and whether they, like the grievor, would have allowed the truck to idle at all times during working hours, or the extent to which they might or might not have made use of the four wheel drive feature on the vehicle.

The totality of the evidence advanced by the Company is circumstantial. In the arbitrator’s view in the face of such evidence the grievance should succeed if the material, as a whole, is equally consistent with an innocent course of conduct on the part of the grievor as with the Company’s allegation of wrongdoing on his part. Upon a careful review of the elements of the case, the arbitrator is satisfied that the Company has not discharged the burden of proof which is upon it in this matter. There is no material before me to suggest that the non-gasoline or oil related purchases made by Mr. Reynolds are excessive as compared to those made by other S&C Maintainers with similar purchasing authority.

Further, as noted above, the grievor does provide a substantial explanation, documented by the truck dealership, with respect to grave fuel inefficiencies detected in his truck in January of 1997, a relatively short time prior to his discharge in April of the same year. In addition, I accept the grievor’s explanation that he kept the shop vacuum at home for cleaning his truck, which he also kept at that location, and that the fan was stored at his home because of petty theft that had occurred at the Company’s locker facility. On the whole, the Company’s case is, at best, equivocal. In these circumstances the grievance must be allowed.

The arbitrator, therefore directs that the grievor be reinstated into his employment, without loss of seniority and with full compensation for all wages and benefits lost. In the circumstances, the Company is at liberty to substitute a written caution to the grievor with respect to the appropriate practice to be followed with regards to the limitation of items which can be purchased utilizing either of his credit cards. The arbitrator retains jurisdiction should there be any dispute between the parties concerning the interpretation or implementation of this award

Dated at Toronto this 2nd day of March, 1999

(signed) MICHEL G. PICHER

ARBITRATOR