SHP 324

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN NATIONAL RAILWAY COMPANY

AND

Brotherhood Railway Carmen of Canda

GRIEVANCE RE CARMAN R. DUFAULT

 

 

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

The dispute and joint statement of issue filed at the hearing are as follows:

Dispute

Discharge of Carman R. Dufault of Winnipeg, Manitoba.

Joint Statement of Issue

Following an investigation on April 5, 1989, Mr. Dufault 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 giving rise to this grievance are related in the Award issued on this same date in respect of the grievance of Carman P. Domineck [SHP-323]. By the grievor's own admission, he fraudulently used the rail pass of Employee P. Marion, forging his signature to do so, to travel to the Grey Cup game in Ottawa, and returning to Winnipeg, between November 25 and 29, 1988. The grievor was hired on December 24, 1980 and progressed from the rank of labourer to carman at the Transcona Car Shop in Winnipeg. The evidence discloses that it was not until March 30, 1989, when the investigation relating to Mr. Domineck had already disclosed a degree of wrongdoing on the part of a number of employees, that he came forward to give his account of his actions. On April 5, 1989 he admitted having used the CN Rail pass of P. Marion, which he maintains he found, along with Mr. Marion's wallet, some time prior to November 23, 1988. If the grievor is to be believed, he states that he returned Mr. Marion's wallet a few weeks following his return from the Grey Cup game, and then informed him that he had used his pass to travel to Ottawa.

For the reasons related in the Award respecting Mr. Domineck's grievance, the Arbitrator is not persuaded that there is any basis to reverse the decision of the Company to discharge Mr. Dufault. His actions constituted a calculated and deliberate fraud involving forgery, resulting in the effective theft of over $180.00 from the Company. Notwithstanding his knowledge of investigations being conducted by his employer, Mr. Dufault made no attempt to come forward and admit his own wrongdoing until the web of deception was almost entirely unravelled. Indeed, two days prior to his statement on April 5, he had already been identified by Mr. Domineck as being one of four employees who travelled to Ottawa for the Grey Cup game using Company rail passes.

Mr. Dufault was discharged on May 2, 1989. In the Arbitrator's view the Company's decision was justified, and there are no mitigating circumstances disclosed in the instant case that would merit a reduction of the penalty imposed. Mr. Dufault is not a long-service employee, and while his disciplinary record was clear at the time, the Arbitrator is persuaded that the calculated and deliberate nature of the theft which he perpetrated and the fact that he was not forthcoming with the truth, although he knew investigations were ongoing, until he had no real alternative, raises serious questions as to the viability of any relationship of trust between himself and his employer in the future.

For these reasons the grievance is dismissed.

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

(sgd) M. G. Picher

Arbitrator