SHP 138




(the "Company")



(The "Union")




SOLE ARBITRATOR: J. F. W. Weatherill



There appeared on behalf of the Company:

B. A. Demers

D. W. Flicker

M. M. Yorston

And on behalf of the Union:

J. W. Asprey

W. K. Redhead

R. D. Karpishka


A hearing in this matter was held at Montreal on January 14, 1983.



The Joint Statement of Fact and Issue in this matter is as follows:


On April 16, 1982, Electrician D. Stec was dismissed from service for theft of Company tools and material on April 7, 1982.


The Union contends that the discipline assessed is respect of this employee is to severe and we request a reduction of the discipline from dismissal to suspension for a specific period of time.

There is no dispute as to the facts. The grievor is an employee of some twenty-four years' service. At the time of the incident which led to his discharge, his disciplinary record was clear, although he had been disciplined on a number of occasions in the past.

On April 7, 1982, the grievor was observed entering the machine shop section of the roundhouse at the St. Luc Diesel Shop. When questioned, he indicated that he had been at his own automobile. This was in the course of his shift, and the grievor had not had permission to leave. When asked why he had gone to his car, he replied that it was "to deposit some terminal lugs" and that he had done so (as he put it at the investigation), "in anticipation of future automobile repairs". He admitted that the terminal lugs were the property of the company. He did not have permission to take them.

The grievor was then accompanied to his automobile by company officers, where the terminal lugs were found on the back seat. Upon request, the grievor opened the trunk of his car, where there were found two tool boxes, one of which was closed with a lock, the property of the company - although it would appear that both boxes belonged to the grievor. (A locomotive tread step, taken from a scrap bin and apparently used by the grievor as a traction aid in winter was also found; I do not consider that its possession has any substantial significance in this case).

The tool box closed with the company's lock was found to contain a number of tools belonging to the company, and which the grievor did not have permission to take. It is understandable that from time to time a tradesman would find himself with company tools mixed with his own, but in this case a fairly substantial accumulation had resulted.

The grievor also admitted that he had more company tools at his home. A search revealed a number of these, and in most cases their presence there could not be explained on grounds of casual oversight. It is clear that the grievor had taken company property over a certain period of time. Its total value was substantial; the company listed its replacement value as in excess of $600.00, and at the grievor's trial (he was convicted on a charge of possession and given a suspended sentence), it was agreed to have an actual value of about $400.00.

There is no doubt that the grievor committed theft of his employer's property. That is, in general, grounds for discharge although there are indeed certain exceptions to that general rule, albeit in a rather narrow range. In the instant case it would appear that the grievor has been - in other respects - a good citizen. He was frank to disclose what he had done, when questioned, although the fact remains that he was caught "red-handed". It is said that the grievor has had a number of problems, including a serious problem with alcohol. Following his discharge, the union has sought to have the company accept him in its alcoholism program.

It must be noted, however, that there is no suggestion that at the time the grievor was caught, he was under the influence of alcohol. The fact is, as well, that the grievor quite clearly stole various items of the company's property over a period of time. The suggestion of his participation in an alcoholism program was not raised until after his discharge, and there is no suggestion that his various problems had been brought to the attention of the company before then. This case is not one in which it can properly be said that the theft of the company's property was an isolated and uncharacteristic incident. It is clearly the case that the grievor acted knowingly and repeatedly, over a period of time. It must be concluded that he engaged in deliberate acts of theft of company property. This case is not one coming within the narrow range of exceptions to the general rule that theft of one's employer's property is just cause for discharge.

Accordingly, the grievance must be dismissed.

DATED AT TORONTO, this 18th day of January, 1983.

(signed) J. F. W. Weatherill