SHP 323

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

AND

Brotherhood Railway Carmen of Canda

GRIEVANCE RE CARMAN P. DOMINECK

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

H. Typa General Chairman, Prairie Region

N. Romas Staff Representative

 

 

There appeared on behalf of the Company:

D. A. Watson System Labour Relations Officer, Montreal

S. A. MacDougald Manager, Labour Relations, Montreal

M. R. Kordalchuk Administrative Assistant (Car), Transcona

G. Gysel Employee Relations Officer, Transcona

P. Nicholson Coordinator Special Projects, Montreal

 

A hearing in this matter was held in Montreal on October 4, 1990.

 

AWARD

This is a grievance against discharge for the fraudulent use of a company rail pass. The dispute and joint statement of issue filed at the hearing are as follows:

Dispute

Discharge of Carman P. Domineck of Winnipeg, Manitoba.

Joint Statement of Issue

Following an investigation on April 3, 1989, Mr. Domineck was discharged from the Company's service effective May 2, 1989, for "unauthorized possession and fraudulent use of a fellow employee's CN Rail pass to travel to Ottawa on November 25, 1988, and return to Winnipeg on November 28, 1988".

The Brotherhood contends that there are mitigating factors, which when taken into account, should cause the discharge to be replaced with a more appropriate discipline.

The Brotherhood requests that the discharge be replaced with a more appropriate discipline.

The Company disagrees with the Brotherhood's contention and has declined its request.

***

The facts relating to this grievance are not contested. The Company provides passenger rail passes to employees whose seniority predates March 13, 1979. Employees who hold a travel card are entitled to travel on VIA passenger trains over CN lines, pursuant to an arrangement whereby VIA is reimbursed by CN, in the amount of some 60% of the retail price of a passenger ticket. The red card pass issued by the Company is not transferable, and has printed upon it the following statement:

... The holder shall not permit the use of this card by any other person and shall only use it to obtain the issuance of tickets for the use by the holder and such dependents as may be allowed by such rules and regulations.

***

The grievor, Mr. P. Domineck, commenced employment on May 16, 1983, initially as a labourer in track maintenance, progressing to work within the carmen's craft as a carman apprentice. He was regularly employed at the Transcona Shop in Winnipeg when the events giving rise to this grievance occurred.

The material establishes that on November 22, 1988 ticket reservations were made by telephone in the name of three employees who are holders of CN Rail passes. A fourth reservation was made on November 23, 1988 in respect of another employee's CN pass. All of the tickets booked were for passage from Winnipeg to Ottawa on November 25, 1988, returning to Winnipeg on November 28, 1988 and were for the purpose of attending the Grey Cup game being played in Ottawa, which involved the Winnipeg Blue Bombers. The records of VIA Rail confirm that the first three reservations were made by telephone by Carman Frank Dufault. The first three tickets were picked up at or about 14:50 hours on November 23 from the office of the VIA reservations clerk. The persons collecting the tickets signed the names of pass holders F. Dufault, P. Marion and A. Wasik, the names appearing on each of the passes used when they collected the tickets. The fourth ticket was collected at 09:40 hours on November 24, 1988. It was picked up by the grievor, Mr. Domineck, who presented the pass issued in the name of pass holder-employee M. Boily. It is common ground that Mr. Domineck then forged Mr. Boily's signature onto the ticket. Subsequent investigation revealed that the ticket issued earlier in the name of employee P. Marion was in fact fraudulently obtained by employee Roger Dufault, who forged the signature of Mr. Marion.

The four employees, Frank Dufault, A. Wasik, Roger Dufault and Mr. Domineck then travelled to Ottawa on November 25, attended the Grey Cup game and returned to Winnipeg on November 28, 1988, arriving in Winnipeg at 21:10 hours on November 29, 1988. Upon the arrival of the return train into Winnipeg Senior Production Supervisor J. Ciwko observed the four employees arriving at the entrance of the gate where the "Canadian" had just pulled in from Eastern Canada. His interest was aroused because the four employees had reported off work, collecting either sickness benefits or Workers' Compensation in the days immediately prior. Subsequent to his report to Assistant Manager C.L Trefry an investigation was initiated by the Company.

On February 20, 1989 Mr. Domineck attended for the purpose of providing a statement in respect of his activities on the days in question. During that investigation he denied having travelled to Ottawa, stating that he had merely gone to the station to meet friends who were returning from the Grey Cup game when he was seen by the Company's supervisor.

While the Company was conducting its investigation the CN police and the RCMP commenced a parallel criminal investigation of the employees involved. On March 10, 1989 the grievor was advised that he would be required to provide hand writing samples relative to the signatures of "M. Boily" and "P. Marion" for analysis by a handwriting expert of the RCMP. Shortly thereafter, on March 22, 1989 Mr. Domineck, accompanied by a Union representative, approached the Company's Administrative Assistant H. Kordalchuk, requesting an opportunity to make a full personal statement in respect of the circumstances of his case.

A supplementary statement was taken on March 23, 1989. In that statement the grievor admitted having fraudulently used the rail pass of Mr. Boily, forging his signature, to travel to Ottawa and back on Grey Cup weekend. He explained that the ticket reservations were made by Mr. F. Dufault who, along with Mr. Wasik and a fourth person, had travelled to the Grey Cub game with him. In a subsequent supplementary statement taken on April 3, 1989, when asked how he had obtained Mr. Boily's pass, Mr. Domineck stated that he found the pass at Mr. Frank Dufault's home, and had used it without telling Mr. Boily. According to Mr. Domineck's account, he returned Mr. Boily's pass a few days after his return from Ottawa, and then told him about his fraudulent use of it. He then identified the fourth person involved as employee Roger Dufault. It is common ground that the grievor's fraud caused the Company to pay the amount of $183.59 to VIA Rail in respect of the train ticket obtained by Mr. Domineck. The grievor was discharged on May 2, 1989 for "unauthorized possession and fraudulent use of a fellow employee's CN pass to travel to Ottawa on 25 November 1988 and return on 28 November 1988. Also discharged was Mr. Roger Dufault who, it was established, forged the signature of Mr. P. Marion, whose pass he fraudulently utilized to obtain train tickets for the same trip.

There is no dispute that the grievor's action merited discipline. The sole issue is whether discharge was appropriate in the circumstances. In the Arbitrator's view it was. What the evidence in the instant discloses is a deliberate and premeditated plan whereby Mr. Domineck defrauded the Company of a substantial amount of funds. His actions amount to a form of theft, no less serious than stealing the Company's own property or making a forged or fraudulent time claim. There is no doubt that the grievor knew, or reasonably should have known, that it was contrary to company policy and rules to use another employee's rail pass, as evidenced by the fact that he forged Mr. Boily's signature. An additional aggravating factor in the instant case, which in the Arbitrator's view goes to the destruction of the bond of trust which the employer is entitled to expect in its relation with the grievor, is the deliberate cover-up engaged in by Mr. Domineck when the Company conducted its initial investigation. When Mr. Domineck knew that the Company suspected some wrongdoing, and was expending time and effort in investigating his actions, he falsely denied any involvement in the trip to the Grey Cup. While in one sense that may be characterized as a continuation of the same infraction, it does I think go to the overall issue of the grievor's candor and trustworthiness in the future. In weighing the mitigating factors, or absence of mitigating factors in this case, it is significant that there was no admission of wrongdoing on the part of the grievor or expression of remorse until he was told that he must provide sample signatures for analysis by the RCMP. In the circumstances the regrettable conclusion is that he did not "come clean" until he had no other choice.

Arbitral jurisprudence recognizes that theft is among the most serious of disciplinary infractions. Discharge is frequently viewed as a justified penalty, absent mitigating factors such as long service and evidence proving that the action of the employee was an impulsive, spur of the moment gesture that was out of character. Where those factors are absent, however, discharge has generally been sustained. In particular, the intentional and calculated fraudulent use of a VIA Rail pass has been found to be just cause for discharge (see CROA 1298).

In the Arbitrator's view the mitigating factors that might suggest a reduction of the penalty imposed upon Mr. Domineck do not weigh heavily, and the aggravating factors do. While he has a clear disciplinary record, Mr. Domineck is not a long-service employee. As the evidence discloses, his theft of Company funds through the fraudulent misuse of another employee's rail pass was not an impulsive or spur of the moment act. It was, on the contrary, part of a deliberate and calculated plan, involving a group of employees over a period of days. The fact that the grievor forged another employee's signature and, during subsequent investigations lied to the Company until such time as he had no alternative but to confess does little to support the conclusion that a relationship of trust can be restored between himself and the Company.

In the Arbitrator's view the grievor's actions merited discharge and there are no compelling reasons demonstrated for a reduction of the penalty imposed by the Company. For all of these reasons the grievance must be dismissed.

DATED at Toronto this 16th day of October, 1990.

(sgd) M. G. Picher

Arbitrator