CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 3793
CANADIAN NATIONAL RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL
WORKERS UNION OF
Concerning the discharge of Lead Hand Mechanic Mr. Robert Brewitt for alleged “misrepresentation and involvement regarding the circumstances surrounding the unauthorized leave, time of unauthorized departure and falsification of time records on December 31st, 2008 by [another] Mechanic …”.
UNION’S STATEMENT OF ISSUE:
It is common ground that on December 31st, 2008, [an] employee left work early. The Company charged [that employee] with “inappropriate use of Company property and time”. It is the Company’s position that the grievor, Mr. Brewitt, participated in the alleged infraction of [that employee].
(SGD.) R. FITZGERALD
There appeared on behalf of the Company:
R. Bateman –
Sr. Manager, Labour Relations,
D. S. Fisher –
Director, Labour Relations,
D. Cater –
Terminal Manager, BIT,
And on behalf of the
R. Fitzgerald –
J. Almdal –
D. Michaluk – Regional Representative,
R. Brewitt – Grievor
AWARD OF THE ARBITRATOR
Lead Hand Mechanic Robert Brewitt was dismissed for what the Company
characterizes as misrepresentation and his deception in respect of his
involvement in the unauthorized departure from work and falsification of time
records in respect of another employee working on his crew on
Before turning to the facts, it is instructive to recall the comments of this Office in CROA 3322. That case involved the discharge of an employee for having allegedly falsely misrepresented an injury. While much of that case turned on the issue of whether the employee was afforded a fair and impartial investigation, in approaching the general issue of the burden of proof the arbitrator commented as follows:
Bearing in mind that the Company has the onus of proof in this matter, and that an allegation as serious as fraud requires a high standard of clear and cogent evidence, what the case at hand presents is evidence which is equivocal at best. …
The record in
the case at hand discloses that another employee, S.L., left work early on the
discloses that S.L.’s time card did not reflect an accurate recording of his
The Company does not believe the version of events recounted by S.L. It has concluded that in fact S.L.’s card was double punched by the grievor after their telephone call following the visit to the garage by Mr. Cheeseman. Notwithstanding the grievor’s denial of that allegation, the contrary account of S.L. and the supporting testimony of a third employee who was present at the garage, the Company has formed the opinion that Mr. Brewitt was intrinsically involved in the punch card fraud of S.L., who it surmises in fact departed work considerably earlier, claiming payment for an extensive period of time not worked.
Upon a careful review of the evidence the Arbitrator cannot sustain the Company’s conclusion. There is, very simply, no direct or compelling evidence presented by the Company to connect the grievor to the improper punching of the time card of S.L. On the other hand there is direct testimony from S.L. himself, supported by two other employees, to the contrary. Although during the initial stages of the investigation S.L. denied any wrongdoing, he eventually “came clean” and explained that when he received a phone call to the effect that someone was looking for him at work he returned to the workplace and double punched his card at or about 22:45. The Company can offer no direct evidence to undermine or contradict that account of events given by S.L. It prefers to believe that S.L. was long gone and did not return to the plant, and that his card was in fact double punched by Mr. Brewitt.
While the Arbitrator can understand the reasons for the Company’s surmise and suspicion, a board of arbitration cannot reduce the standard of proof to one of mere possibility or suspicion, given the rules of evidence which govern our procedures. It is for the Company to prove, on the balance of probabilities, that the grievor did manipulate the time card of employee S.L. There is, very simply, no direct evidence to confirm that allegation. Indeed, such direct evidence as is before the Arbitrator is entirely to the contrary.
In the result the grievance must be allowed. The Arbitrator directs that the grievor be reinstated into his employment forthwith, with compensation for all wages and benefits lost and without loss of seniority.
(signed) MICHEL G. PICHER