BETWEEN:

(the "Company")

AND

(The "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

There appeared on behalf of the Company:

J. R. Blotsky

D. J. David

And on behalf of the Union:

J. W. Asprey

P. E. Perreault

A hearing in this matter was held at Montreal on February 23, 1984.

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

The grievor, a Carman Helper, was hired by the company in May, 1977. He wash dismissed on May 18, 1983, for the reasons set out in the joint statement. As appears from the statement, there were three, or perhaps four occasions for the imposition of discipline. The issue is whether or not these constituted just cause for the discharge of the grievor.

The first and second of these occasions occurred on Wednesday, April 13 and Thursday, April 14, 1983. On each occasion the grievor, who worked the 15:30 to 23:30 shift, punched out another employee’s time card, in addition to his own, at the end of the shift. When asked about the matter by his supervisor on Monday, April 18, the grievor admitted having punched out the other employee’s card, saying that the employee had asked him to do so during his lunch break, and that he had done it as a favour to him.

It would appear that the other employee left work about two hours before the end of the shift.

The grievor knew that the effect of his punching out the other employee’s card was that the employee would be paid for time not worked. He knew that that was wrong, and that it was against the rules. Be stated that be bad never done such a thing before, and that he had never it done on his own behalf.

Certainly it is an offence to punch out another employee’s time card in this way. There can be no doubt that the grievor was subject to discipline on that account. There is no evidence of any previous disciplinary record against the grievor. While it is true that the offence was repeated on two successive days, it might nevertheless be that for these matters alone, discharge might be considered an excessive penalty in the grievor’s case, having regard to his clear record, his seniority and his apparent frankness. It is, however, clear that a substantial penalty would be appropriate.

The next occasion for discipline of the grievor was discovered on April 15, 1983, when a search of the grievor’s home revealed a machinist’s hammer, the property of the company. Again, the grievor appears to have frankly admitted the facts. The hammer was one supplied to him on requisition for certain work he was performing on September 22, 1982, when he was apparently recalled to work after a layoff. When the grievor was again laid off on November 14, he took the hammer home with him, intending, he said, to take it back to work when he was recalled. This would, I think, be improper in any event, but if the grievor had in fact brought the hammer back upon his recall to work, the matter would perhaps be understandable, and a relatively minor penalty might be imposed.

The grievor was recalled on January 5, 1983, according to his statement. The hammer was found in his home on April 15. In such circumstances the grievor’s professed intention to return it is difficult to accept. The conclusion that this was really an act of theft is difficult to avoid.

Finally, the search of the grievor’s home conducted on April 15 also revealed the presence of some forty pieces of used silverware, the property of VIA Rail. With respect to these, the grievor admitted that he had taken them from the kitchen of a stainless steel car, in late October or early November, 1982. He knew, of course, that they were the property of VIA Rail, and he had no excuse for taking them. He stated that "J’ai fait cela dans un geste irréfléchi et je m’en excuse". While it may be that the theft was "a spontaneous act", there was no very rapid recognition of that fact, and no step taken to right the wrong which he knew be had done. The property was still in the grievor’s home when it was searched on April 15, 1983. The grievor appears to have made a frank admission at that time, but he really had no other choice.

Theft of an employer’s property, or of a customer’s property is, in general, grounds for discharge of an employee. In the instant case, there can be no doubt that the grievor in fact committed several acts of theft, or of an offence equivalent to theft, over a substantial period of time. He appears not to have expressed any remorse therefor until he was caught. In these circumstances, the case cannot be brought within the narrow range of exceptions to the general rule that discharge is the appropriate penalty for theft.

For the foregoing reasons, it is my conclusion that there was just cause for the penalty imposed. Accordingly the grievance is dismissed.

DATED AT TORONTO, this 7th day of March, 1984.