SHP - 70
IN THE MATTER OF AN ARBITRATION
Canadian Pacific Limited
DIVISION NO. 4. RAILWAY EMPLOYEES' DEPARTMENT AFL - C.I.O.
RE:GRIEVANCE OF R. THEBERGE
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
APPEARING FOR THE COMPANY:
A hearing in this matter was held in Montreal on March 13, 1980.
AWARD OF THE ARBITRATOR
The Joint Statement of Facts and of Issue in this matter is as follows:
JOINT STATEMENT OF ISSUE:
On December 4, 1979, Carman Trainee R. Theberge was dismissed for accumulation of more than 60 demerit marks.
This accumulation was the result of the assessment of 45 demerit marks for falsification of his employment application form.
JOINT STATEMENT OF ISSUE:
It is the position of the Union that in dismissing Carman Trainee R. Theberge, the Company treated him unjustly, and that the assessment of 45 demerit marks leading to his dismissal was unfair.
It is the position of the Company that in all the circumstances the issuing of 45 demerit marks for the above-noted offence was warranted, and that dismissal in accordance with standard Company policy for accumulation in excess of 60 demerit marks was justified.
* * *
The questions to be determined are first, whether or not, in the circumstances to be described, the Company had just cause to discipline the grievor and if so then second, whether the assessment of 45 demerits was justified. If, in any event, the grievor had accumulated more than 60 demerits, then he would be subject to discharge under the system of discipline in effect.
It is acknowledged that the grievor did make a false statement on his application for employment. On August 22, 1977, the grievor filled out an application for employment with the Company. The application form calls for the applicant to list his previous employers of the past five years. The grievor listed as his employer from July 1972 to June 1976, "Lévis Métal", and gave as his reason for leaving that the plant had closed. The grievor gave other information as to his background and qualifications, and he was hired by the Company on August 31, 1977, as a Carman Helper.
The grievor had never worked for "Lévis Métal" as no such Company existed. Instead, during the period of time referred to, the grievor had worked first for Canadian Steel Foundries Division, Hawker Siddley Canada and later, briefly, for Canadian Vickers Limited. He was laid off from the latter job because of reduction in staff. He was twice dismissed from Canadian Steel Foundries, however, in each case for conduct which included inciting employees to participate in an illegal strike. On the first such occasion, in 1973, the grievor's discharge was the subject of arbitration proceedings, and in the result a four-month suspension was substituted for the discharge and the grievor was reinstated. On the second occasion, in 1974, the grievor's discharge was again the subject of an arbitration, but on that occasion the grievance was dismissed.
As the grievor frankly stated, he falsified his application for employment in the way described because he felt he would not be hired if the Company was aware of his true employment history. The Company, equally frankly, states that had it known of the grievor's employment history, it would not have hired him.
In fact, at the time the grievor was hired, the Company was hiring many new employees in the grievor's classification. It did not carry out the verification of statements made in applications for employment as it would normally have done. Thus, had the grievor made a truthful statement of past employment in his application, the Company, not checking those references, would not have known of the grievor's past misconduct, and would, in fact, have hired him exactly as it did. The grievor nevertheless had an understandable apprehension that if the Company were to know his true record, it would not hire him.
The grievor served his probationary period and became a regular employee. His work, as such, appears to have been satisfactory. From the time of hiring until May 15, 1979, however, the grievor did accumulate a total of forty-five demerits; a total of fifteen for the offences of poor timekeeping, reporting late and loafing; and thirty for insubordination. Then, also in May, 1979, the grievor was assessed further demerits and dismissed as a result of an incident relating to a form of union activity. That matter was referred to arbitration and the discipline was set aside and the grievor reinstated with compensation. Its only relevance to these proceedings is that on that occasion the Company appears to have enquired into the grievor's application for employment, and to have found that it contained the false statement described. The matter of the false statement was investigated on November 29, 1979 (the grievor, as has been noted, acknowledging what he had done), and the grievor was subsequently assessed 45 demerits and dismissed, which gave rise to this grievance.
The application for employment form contains a statement to be signed by the applicant, in which it is acknowledged that any intentionally false declaration might lead to the applicant's discharge from the Company. That acknowledgment, however, does not preclude the employee from raising the issue of just cause. No such unilaterally promulgated rule could have the effect of avoiding the just-cause requirements of the exercise of disciplinary power pursuant to the collective agreement. Cp. Re Gould Mfg., [1973) 2 O.R. 279.
On the other hand, the expiry of the probationary period does not necessarily preclude the Company from taking disciplinary action in respect of a false statement on an application, when it is discovered. The real question of substance is whether or not the falsification involves a matter relating to the employee's ability to carry out his duties. At the same time, I think that it is fair to say that the probationary period is one during which an employer may, among other things check the references an employee has given, so that it may make an informed decision as to whether or not to keep him as a permanent employee. An employer should, in this regard, be considered as under some obligation to make reasonable efforts in this regard, if it wishes later to rely on a false statement as a ground for discipline.
There are a number of factors which, depending on the circumstances, may be taken into consideration in a case such as this. Many of these are listed in the Gould Manufacturing case 1 L.A.C. (2nd) 314 (Shime), which was cited by the Company. In that case the grievor had failed to disclose information relating to his criminal record. It would appear from the circumstances there, that that employer would not have hired the grievor had it known the true facts. The grievor was, nonetheless reinstated.
The fact that the employer, had it known then what it knows now about the grievor, would not have hired him does not necessarily require the conclusion that the Company may, now that this knowledge has been acquired, discharge him. If what were involved were, for example, some dangerous and continuing medical condition, or the continuing lack of some important qualification, technical or formal, then discharge would seem appropriate. In the instant case, however, the knowledge which the Company has now gained about its employee the grievor is that, in his second-to-last employment, some three or four years, before he came to this Company, and some five years before his discharge, he had engaged in the very serious offence of inciting others to participate in an unlawful strike. The grievor was, of course, penalized for that misconduct by his employer of the time. Those acts of misconduct, however, do not support any diagnosis of dangerous recidivism, analogous to some sort of disease which the grievor might spread to others (tempting as that analogy might be). The grievor's past misbehaviour is not a condition or incapacity or disqualification which would prevent him from carrying on as a good employee. Certainly it does not affect his ability to perform his daily work. It may even be (the grievor's record with this Company raises some doubt in the matter, unfortunately), that the grievor has learned something about his duties and obligations as an employee as a result of the discipline imposed on him in the past.
Having regard to all of the circumstances, and to all of the factors referred to in the Gould Manufacturing case and others, it is my view that the false statement made by the grievor, being discovered when it was and relating as it did to past misconduct involving unlawful strike activity, did not give rise to an occasion of the imposition of discipline.
It is accordingly my award that the grievor be reinstated in employment without loss of seniority and with compensation for loss of earnings and other benefits. The grievor's discipline record, however, stands at 45 demerits as of the date of his reinstatement.
DATED AT TORONTO, this 19th day of March, 1980.
(signed) J.F.W. Weatherill