SHP - 39
IN THE MATTER OF AN ARBITRATION
THE RAILWAY ASSOCIATION OF CANADA
RAILWAY EMPLOYEES' DEPARTMENT, DIVISION NO. 4
RE:GRIEVANCE OF J. VEZEAU
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
J. W. Asprey
J. H. Clark
APPEARING FOR THE COMPANY:
J. A. McGuire
A hearing in this matter was held in Montreal on September 16, 1976.
AWARD OF THE ARBITRATOR
The facts and the issue in this matter appear in the parties' Joint Statements, which are as follows:
JOINT STATEMENT OF FACT
On January 13, 1976 Machinist Jean Vezeau was tried in the Court of the Sessions of the Peace in Montreal on the charge of conspiracy and extortion which took place on Company property and involved a Company employee.
On February 13, 1976 Machinist Jean Vezeau was found guilty as charged and convicted of conspiracy and extortion contrary to Sections 305 and 423 (d) of the Criminal Code of Canada.
On February 25, 1976, after conducting on investigation as required by Rule 28.1 of Wage Agreement No. 16, Machinist Jean Vezeau was dismissed from the Company's service as a result of his having been found guilty of conspiracy and extortion involving a company employee on Company property.
JOINT STATEMENT OF ISSUE
It is the position of the Union that the dismissal of Machinist Jean Vezeau was not justified and that he should be reinstated with full pay for all time lost.
It is the position of the Company that Machinist Jean Vezeau was rightfully dismissed and, therefore, the dismissal should stand.
The conspiracy and extortion attempt of which the grievor was found guilty involved a threat to break a fellow-employee's legs unless he paid over a certain amount of money. The grievor's offence was, as his conviction by a criminal court establishes, a crime. It was also, obviously, an offence against the individual, concerned. In addition to this, it was an industrial offence, in that it was the sort of conduct in respect of which on employer would be justified in imposing discipline.
It is only this last aspect of the matter which is involved here. It must be shown, of course, that the employer had proper grounds for imposing any discipline. Here, the grievor's criminal conduct was not directed against the employer as such. It did, however, directly affect the employer's operations, in that it was carried out on company premises and, more importantly, that it was carried out against a fellow-employee. Surely the adverse effect on other employees and on the work force generally of a disgusting crime such as this needs no elaboration. It was, in the circumstances, sufficiently "work-related" to justify disciplinary action.
It was the union's position that, since the grievor was tried and convicted for extortion and conspiracy, for the employer to penalize him would be to place him in "double jeopardy". This is not the case. The industrial offence of terrorizing or victimizing a fellow employee, while it may involve the same vicious conduct, is not the same offence, and does not involve the same parties as the offence under the Criminal Code. Where a person steals another's property, he commits the offence of theft. If he is tried and convicted for that theft, he is not thereby relieved of his responsibility to his victim, to make good the loss he has caused. So in this case, where the grievor commits an offence against society (the crime of extortion and conspiracy) an offence against a fellow-employee, and an industrial offence on the premises of his employer, he is faced with responsibility to each of these, even if these three sorts of responsibility arise out of one act or set of acts on his part. He has hurt society, and by the same act hurt a fellow-employee and his employer. If he may be thought to have "paid his debt to society" (although his suspended sentence still runs), he is not thereby relieved from paying his other debts.
I have, therefore, no doubt that the employer was justified in imposing discipline on the grievor. As to the severity of the penalty, while I note the grievor had some fourteen years' seniority, and while there is no evidence before me of any disciplinary record, I consider that the offence is so despicable, and its potential effect on the orderly conduct of the employer's operations so serious, that discharge was amply justified.
For the foregoing reasons, the grievance is dismissed.
DATED at Toronto, this 27th day of September, 1976.
J. F. W. Weatherill