CANADIAN RAILWAY OFFICE OF ARBITRATION
CASE NO. 2137
Heard at Montreal, Wednesday, 10 April 1991
CANADIAN PACIFIC EXPRESS & TRANSPORT
TRANSPORTATION COMMUNICATIONS UNION
The assessing of 45 demerits to employee Glen Warner, Kingston, Ontario, for allegedly being in possession of stolen property.
UNION’S STATEMENT OF ISSUE:
On June 21, 1990, CP Police made a search of employee Glen Warner’s residence and then proceeded to charge him with being in possession of stolen property.
The Union maintains the interview that was held was untimely and, further, denies all accusations. The Union requested the demerits be expunged from his record.
The Company refused the Union’s request.
FOR THE UNION:
(SGD.) J. J. BOYCE
SYSTEM GENERAL CHAIRMAN
There appeared on behalf of the Company:
B. F. Weinert – Director, Labour Relations, Toronto
And on behalf of the Union:
J. Crabb – General Secretary/ Treasurer, Toronto
M. Gauthier – Vice-General Chairman, Montreal
P. Hodgekinson – Local Chairman, Brockville
G. Warner – Grievor
AWARD OF THE ARBITRATOR
The explanation advanced by the grievor, who attended at the hearings and gave an explanation unrebutted by any witness called by the Company, is that he was unaware that the article that was in his possession, namely a video camera, was stolen. While the Company was in possession of written statements suggesting an alternative theory, no direct evidence to support its view was available at the arbitration hearing. In the result, on the evidence before me, it must be found that the explanation offered by Mr. Warner stands uncontradicted by any direct evidence. In the result, the Company has not discharged the burden of establishing, on the balance of probabilities, that there was just cause for the assessment of 45 demerits against the grievor in this case. In light of that conclusion it is unnecessary to address the alternative issue of the timeliness of the Company’s assessment of discipline against the grievor.
For the foregoing reasons the grievance must be allowed. The demerits assessed against Mr. Warner shall be removed from his record forthwith.
12 April 1991 (Sgd.) MICHEL G. PICHER