SHP 255

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC (CP RAIL)

(the "Company")

AND

BROTHERHOOD RAILWAY CARMEN OF CANADA

(the "Union")

AND IN THE MATTER OF THE GRIEVANCE OF D. M. LAWRENCE

 

SOLE ARBITRATOR: J. F. W Weatherill

APPEARING FOR THE COMPANY:

D. A. Lypka

D. J. David

 

 

APPEARING FOR THE UNION:

B. R. McDonagh

 

 

A hearing in this matter was held in Montreal on November 22, 1988.

 

 

AWARD

The grievor, a Carman Helper having some thirty-five years' service and a clear discipline record, was discharged by the company on September 30, 1986. The issue is whether or not the grievor was discharged for just cause.

The parties submitted separate statements of the issue. The company's statement is as follows:

It is the position of the Brotherhood Railway Carmen that Mr. D.M. Lawrence has been unjustly dismissed and should be reinstated only to enable him to make immediate application as an active employee for company pension.

The Brotherhood's statement is as follows:

It is the position of the Brotherhood Railway Carmen that Mr. D.M. Lawrence has been dealt with in an excessive and unjust manner when dismissed from service and therefore should be reinstated forthwith and reimbursed all rights, benefits and wages lost, as provided for in the Wage Agreement.

The difference between these positions is that the company contends that the union is limited, in the relief it may obtain if the grievance succeeds, to a nominal reinstatement of the grievor for the purpose of pension application. This contention is based on what was put forward by the union in the course of the grievance procedure in an effort to resolve the grievance. Such efforts are, in their very nature, without prejudice to the advancement of the grievance as filed. In a more formal system of arbitration, efforts at settlement would not be referred to at the arbitration. In any event, the union in this case is not limited, in the relief it claims for the grievor, to what it may have said it would accept as settlement, during the grievance procedure.

There is no dispute between the parties as to the facts. The grievor was discharged for theft. He did in fact steal a case of twelve one-litre bottles of motor oil from the shop where he worked. It was a deliberate act of theft: the grievor removed the case of motor oil from the shop and placed it on the floor of the passenger side of his truck, under a rug. He had parked his truck close to the entrance to the shop.

Clearly, the only substantial issue is as to the severity of the penalty. Generally, the penalty for theft of an employer's property is discharge. In a few cases, that penalty has been reduced in the light of mitigating circumstances. In the instant case, there are certain considerations which are favourable to the grievor. Among these are his long service and clear record. While there is no doubt as to these, it may be noted that when the grievor's home was (with his consent) searched, an expensive tool belonging to the company was found. It was the grievor's position that he had only borrowed the tool and intended to return it. He said that he had told other employees at the time he took it that he was borrowing it, and asked them to so advise the foreman. That procedure was certainly not the procedure prescribed by the company for the borrowing of tools (which is permitted), but it seems that the procedure is not rigorously followed at that shop. It is not denied that the grievor told the others he was borrowing the tool, and I do not consider that the finding of the tool at the grievor's home was proof of some other act of theft, although the matter can certainly not be said to weigh in the grievor's favour.

It is also to be considered that the grievor, when apprehended, immediately acknowledged his wrongdoing. In all of the circumstances, however, that consideration does not bear very great weight, The grievor had been caught and his culpability was clear. It is proper that the grievor have, as it seems clear he does, a sense of guilt over the matter. That in itself, however, does not bring the case within the limited range of those where reinstatement has been ordered notwithstanding theft of company property. The grievor says that the theft was a "spur of the moment" matter, but it was only relatively so: it is clear on all of the material before me that the grievor had in fact formulated a plan to steal the motor oil and to avoid apprehension if possible. It may also be noted that there is nothing in this case to support a conclusion that the grievor was somehow forced by overwhelming circumstances to commit the offence. There is no suggestion that the grievor's circumstances are (apart from his length of service), in any way similar to those of the grievor in CROA case no. 1814.

That the grievor's loss is very substantial is undoubted. The grievor will be eligible for pension in the normal course. Pension benefits, the Company states, are available to the grievor now (on an actuarially-reduced basis), and have been since January, 1987. It would not be appropriate, however, to compare his loss with the undoubtedly lesser penalty which might be imposed upon conviction of a criminal offence in relation to the same matter. The employment relationship is a two-sided one in a sense in which a citizen's relationship with society in general is not. To reinstate an employee who has stolen his employer's property is, except in special cases, to impose on the employer and on fellow employees a person whose actions have struck at the very root of the employment relationship. Such an imposition is proper only in very special circumstances as, for example, were found to exist in CROA case no. 1814, but which do not exist here. In general, what was said in CROA case no. 806 applies equally here: "That such acts should be committed by a long-service employee is a very sad thing, but does not make the case an exception to the general rule that theft is grounds for discharge".

Having regard to all of the foregoing, it is my conclusion that there was just cause for the discharge of the grievor. The grievance must accordingly be dismissed.

DATED AT TORONTO, this 25th day of November, 1988.

(signed) J. F. W. Weatherill

Arbitrator