SHP Ė 191

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company")

AND

CANADIAN DIVISION BROTHERHOOD OF RAILWAY CARMEN

(The "Union")

IN THE MATTER OF THE GRIEVANCE OF T. H. GILBERT

 

 

SOLE ARBITRATOR: J. F. W. Weatherill

 

 

There appeared on behalf of the Company:

J. A. Cameron

 

 

And on behalf of the Union:

S. A. Horodyski

 

 

 

A hearing in this matter was held at Montreal on January 21, 1986.

 

 

AWARD

The grievor, who was hired by the company in July, 1979 as a Carman Trainee, was working as a Carman at the time material to this grievance. He was discharged by the company on September 4, 1985, for "theft of Company property, 10 August 1985 Sarnia Tempo Yard". The issue is whether or not there was just cause for the discharge of the grievor.

There is no substantial dispute as to the facts. The grievor arrived at work at about 11:30 p.m. on August 9, 1985, for his shift commencing at 00:01 on August 10. At about 00:45 he was observed by officers of the companyís Investigation Department siphoning gasoline from a company vehicle into a container. At about 00:55 he was observed emptying the container into the tank of his own automobile.

An investigation was held with respect to this matter, and the grievor admitted what he had done, expressing regret and contrition. He stated that he had had no money, and no gasoline in his car to get back home. At the hearing, the grievor stated that he had discovered on arrival at work that he was out of gas; that he had no money and no credit cards; that he tried to borrow money from other employees, but was unable to do so as it was the day before pay day; that there was no foreman available, and that he lived some sixteen miles away.

In such circumstances (and I accept the grievorís evidence, which is not denied), the pressure on the grievor to do what he did is quite understandable. He ought at the very least, however, to have advised someone of what he had done, or left a note. What he in fact did was to steal company property and that is, as the union of course acknowledges, a very serious offence.

As a general rule, the appropriate penalty for deliberate theft of company property is discharge. Every discipline case, however, must be considered in the light of its own circumstances. One matter which is proper to be considered is whether or not the company has consistently applied similar penalties in cases of similar offences (and of grievors having similar records). In the instant case, it was argued that the company had in effect discriminated against the grievor because it had not discharged other employees who had committed theft or an offence equivalent to theft. The material in support of that contention, however, does not show that, in one case referred to, the company had determined that the employee concerned had in fact committed theft, or that, in another, the circumstances were sufficiently similar to justify significant comparison. Certainly there have been many cases in which discharge had been upheld as appropriate in cases of theft.

There have, however, been cases where an employee, although guilty of theft or attempted theft, has nevertheless been reinstated in employment. The common ground of most of those cases, as stated in CROA Case No. 806, is that the theft was found to be "an isolated, anomalous act in the career of a person who has otherwise shown himself to be a good employee and a good citizen".

In the instant case, while one can only assume that the grievor is a good citizen, there is no indication of any current discipline record, and while the grievor certainly intended to take the gasoline, there is nothing to suggest that he would have formulated such an intention in the absence of the particular circumstances which, in his mind at least, almost forced him to it. His offence was not "premeditated" in any greater sense than that.

The force of circumstances does not change theft into anything else, but it may alter the nature of the appropriate disciplinary response thereto. In the instant case, given the situation in which the grievor found himself at the time, and given his frank avowal of what he had done, his obvious contrition and his clear disciplinary record, it is my view that the penalty of discharge was too severe. It is clear, however, that a substantial period of suspension (or the imposition of substantial demerits) would have been called for.

In the instant case, having regard to the foregoing and to all of the circumstances, I make the following award: the discharge of the grievor is set aside, and he is to be reinstated in employment forthwith, without loss of seniority or other benefits, save only that no compensation for loss of earnings is payable in respect of the period from the grievorís discharge until February 15, 1986. For purposes of clarity, it is noted that compensation would be payable under this award in respect of loss of other benefit payments.

DATED AT TORONTO, this 10th day of February, 1986.

(signed) J. F. W. Weatherill