IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC LIMITED
BROTHERHOOD OF RAILWAY CARMEN OF CANADA
GRIEVANCE RE CARMAN G. AGNEW
SOLE ARBITRATOR: M. G. Picher
APPEARING FOR THE COMPANY:
M. E. Keiran
D. A. Lypka
J. P. Lotecki
I. J. Waddell
D. J. David
APPEARING FOR THE UNION:
A hearing in this matter was held in Montreal on July 18, 1989.
This is a grievance against discharge for alleged theft. The following is the joint statement of fact and issue submitted at the hearing:
JOINT STATEMENT OF FACT
On November 10, 1988, Carman G.R. Agnew of Alyth Car Department was "dismissed for the theft of Company property at Calgary, Alberta on September 22, 1988".
JOINT STATEMENT OF ISSUE
It is the Union’s contention that Mr. Agnew has been unjustly discharged and that he should be reinstated forthwith and reimbursed all rights, benefits and wages lost as provided for in the Collective Agreement.
The Company denies the claim.
The grievor, Carman G.R. Agnew was hired in June of 1981 as a Carman’s Helper and progressed to the rank of Carman at the date of his discharge in November of 1988. The grievor’s place of work was in the Alyth Car Department in Calgary. On September 22, 1988 while off duty at approximately 0835, Carman Agnew was visiting his brother who worked for a construction company employed at the Ogden Shops, a separate location of the railway. Upon leaving the main gate of that location Mr. Agnew’s vehicle was submitted to a routine search by the security guard on duty. In the trunk of the grievor’s automobile the security guard discovered eight 4 litre containers of all-season antifreeze which belonged to CP Rail. Both in response to questions from the security guard and during the subsequent investigation by the Company Mr. Agnew asserted that the antifreeze kept in his trunk was there to be used exclusively on machinery at his normal location, the tank track at Alyth Yard. The grievor asserted that the Kabota tractor and the forklift at his job site had consumed excessive amounts of coolant, and that he therefore kept a supply within his car trunk to keep those machines in good working order. Further investigation revealed, however, that Mr. Agnew had never requested or received authorization to withdraw the coolant from the Company’s stores, and had never filled out the requisite Material Requisition Form in respect of the eight containers of coolant which he took. Still further doubt is cast on the grievor’s explanation of these events by virtue of his statement that he obtained the antifreeze from the Stores Department on Friday, September 16, 1988, which is a day when he was not on duty. The material filed by the Company confirms that the Kabota tractor and forklift at the tank track in Alyth Yard were at all material times in good running condition and did not require unusual amounts of antifreeze.
While in any discipline case the burden of proof is upon the Company, there maybe circumstances in which the facts which are prima facie disclosed will require the employee to provide a full and credible explanation of circumstances which would otherwise appear culpable. So it is in the instant case. It is beyond dispute that the grievor was found in possession of a substantial quantity of engine coolant, stored in the trunk of his car, at a time when he was off duty. While he maintains that he filled out a requisition form, no such documentation could be traced. Mr. Agnew’s explanation for the coolant is, moreover not substantiated by any other employee or supervisor. Bearing in mind that the standard of proof in a matter such as this is upon the balance of probabilities, and not beyond a reasonable doubt, the Arbitrator is compelled to conclude in all of the circumstances, that Mr. Agnew has not provided a credible explanation for his possession of Company property. I am satisfied, on the balance of probabilities, that the grievor took the coolant without authorization, without documenting its removal from the Company’s stores, on a day other than a work day and that he did so for his own purposes, and not for any legitimate reason relating to his work. On the material before me I must conclude that the Company’s allegation of theft is made out.
The issue then becomes the appropriate measure of discipline. It is well established that theft of Company property strikes at the root of the employment relationship to the extent that it destroys the foundation of trust essential to continued employment (CROA Cases # 806, 859, 860, 937, 986, 1165 and 1835). Nor is this a case in which the Union can assert long service or a particularly positive disciplinary record. At the time of his discharge, Mr. Agnew had seven years of service and a discipline record standing at thirty-five demerits. On the whole, given the gravity of the offence committed, the Arbitrator can see no reason to substitute a lesser measure of disciplinary penalty.
For the foregoing reasons the grievance must be dismissed.
DATED AT TORONTO, this 25th day of July, 1989.
(signed) Michel G. Picher