SHP - 384
IN THE MATTER OF AN ARBITRATION
VIA RAIL CANADA INC.
NATIONAL AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS UNION OF CANADA
GRIEVANCE OF COACH CLEANER ALAIN MORIN NOVEMBER 4, 1991
SOLE ARBITRATOR:Harvey Frumkin
APPEARING FOR THE UNION:
Jean-Pierre Desjardins –Rep. Accidentes du travail
Me Richard Guerette – Counsel for the grievor
APPEARING FOR THE COMPANY:
Ken Taylor – Counsel
Josee Ouellet – Sr. Officer Labour Relations
A hearing in this matter was held at Montreal on September 2nd, 1993.
The grievance which bears date November 4th, 1991, contests the discharge of the Grievor, Alain Morin, a Coach Cleaner, on October 4th, 1991, for alleged fraudulent use of a rail-pass. The following Joint Statement of Issue and Facts was submitted by the parties at the outset of the hearing.
JOINT STATEMENT OF ISSUE AND FACTS:
2. Mr. Morin was hired at CN on March 26, 1978 and transferred to VIA in 1985 with his service and seniority.
3. Under VIA’s pass policy, he was entitled to a train pass which required him to sign that the passholder was to use his pass only for himself and dependents.
4. On August 14, 1991, a ticket for the use of Mr. Morin was purchased for train No. 20 from St. Lambert to Quebec City on August 19, 1991, and return on train No. 27 to St. Lambert on August 20, 1991.
5. On August 19, 1991, somebody else than Mr. Morin or his dependants presented the ticket.
6. On September 13 and 23, 1991, investigations were held into Mr. Morin’s alleged fraudulent use of his VIA pass privileges.
7. Following the investigations, Mr. Morin was discharged due to the fraudulent use of his VIA train pass.
8. The Union appealed Mr. Morin’s discharge and requested him to be reinstated and compensated for all lost time.
9. The Corporation declined the appeal.
The Arbitrator is satisfied that the relevant facts concerning the grievance are to the following effect. The Grievor is a Coach Cleaner whose last date of hiring is March 26, 1978. As an employee of the Corporation he was a rail-pass holder entitling him to travel privileges along the Corporation’s rail routes. His declared status with the Corporation was, at the relevant time, that of a single person without dependants.
The conditions of use of the rail-pass held by the Grievor are set out, in part, on the rail-pass and are included with the Pass Policy distributed to all |passholders and are as follows:
Conditions: Not good on non-passenger carrying trains, unless otherwise endorsed. Not transferable; revocable at any time, void if altered or presented by other than person designated herein. …
… 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 use by the holder and such dependants as may be allowed by such rules and regulations.
The policy with regard to dependants also appears from the Pass Policy and was expressed in a memorandum circulated by the Human Resources Service of the Corporation, receipt of which was acknowledged by the Grievor on June 115th, 1991. That policy is as follows:
Should you require a pass for your spouse, common-law or dependents, please complete the enclosed form (VIA FO 146) and return it along with this acknowledgement letter. To obtain a pass for a dependent, he/she must be at least 16 years old and must travel frequently on his/her own, otherwise he/she should be using parent’s pass.
The Pass Policy of the Corporation also provides the various penalties to which the Corporation may resort in the event of fraudulent use of a pass by any passholder. They are as follows:
On August 14, 1991, a ticket was secured upon the Grievor’s rail-pass. That ticket was used to secure passage from St. Lambert to Quebec City on August 19, 1991 and for the return voyage from Quebec City to St. Lambert on the following day. It was discovered during the course of the passage on August 19, 1991 that the ticket holder was someone other than the Grievor.
The Grievor was confronted by representatives of the Corporation on September 13th, 1991. His explanation at the time appears, in part, from an excerpt of his statement as follows:
Q M. Morin etes-vous la personne qui a fait emettre des billets le 14 aout 1991 pour aller de St-Lambert A Quebec pour le 19 aout 1991 et un retour pour le 20 aout 1991,. Veuillez S.V.P. examiner une photocopie de ces billets, ce document sera depose au dossier de l’enquete sous l’annexe "A"?
R. C’est pas moi qui a fait cette reservation, c’est mon amie Chantal qui devait se rendre a Quebec et elle croyait avoir droit de voyager avec mon laisser-passer(sic), sans mien parler elle a ete chercher (sic) ses billets avec mon laisser-passer (sic).
In effect the Grievor initially denied knowledge of the transaction explaining the use of the rail-pass in terms of a belief on the part of his girlfriend that she was entitled to exercise his rail-pass privileges. This as well was the position put forth by the Union at the third stage of the grievance appeal procedure.
January 6, 1991
Mr. K.A. Pride
Manager - Labour Relations
P.O. Box 8116 Station "A"
Montreal, Quebec H3C 3N3
Please accept this as a step III appeal of the decision rendered at step II by Mr. Serge Bilodeau dated November 8, 1991, concerning the grievance submitted on behalf of Mr. A. Morin, PIN #242011, over the alleged fraudulent use of a VIA pass.
The time limits were extended in order for the file to be translated for which I thank you.
The Brotherhood contends the discharge of Mr. Morin in this instance is too severe for the following reasons:
a) In the investigation of the incident there is little doubt that Mr. Morin never had prior knowledge of the purchase of the tickets with his pass, therefore, there was no fraud or attempt of fraud involved on his part;
b) Mr. Morin’s friend Chantal, who purchased the tickets, understood it was legal to use Mr. Morin’s pass in the manner in which she did and quite possibly, other than having the necessary forms filled out, her actions were legal given the circumstances.
The Brotherhood requests that the discharge of Mr. Morin in this instance be replaced with a warning which explains the proper use of VIA passes.
(s) Tom Wood
It is to be noted that in the final analysis neither the Grievor nor his girlfriend travelled on the ticket secured with the Grievor’s rail-pass.
At the hearing the Grievor’s version of events changed. His explanation then was that his girlfriend secured a ticket on his rail-pass for his use while at the same time purchasing at full fare a second ticket for herself. He states that the intention was for both of them to travel together to Quebec City and back. The Grievor explains that for personal reasons he subsequently decided to abandon his plans and it was then that the ticket secured for him in the manner above described was given to a friend.
Had the Grievor established, as he initially contended, that he had no knowledge of the transaction, the issue before the Arbitrator may have concerned simply a matter of whether the Grievor had been careless in failing to ensure that his rail-pass not be used improperly and in contravention of Corporation Policy. But the evidence presented by the Grievor falls short of establishing such an absence of knowledge. Quite to the contrary the Grievor’s version, offered at the hearing, which differs significantly from that initially offered indicates that the Grievor was aware that the ticket was secured on his rail-pass and that it was to be used by another and this in violation of the terms under which that rail-pass was issued. The Grievor knew full well that any ticket secured on his pass was to be for his personal use and for no one else. He had not declared his girlfriend as a dependent for purposes of the use of a rail-pass so that she would have had no right to secure a ticket for herself under the Pass Policy. In any event it was not the Grievor’s girlfriend who had travelled on the ticket which she had obtained.
Improper use of a rail-pass must be seen as a serious matter. The Company’s own Pass Policy states that improper use may result in discharge. The Corporation confers rail-pass privileges upon its employees. Abuse, if left unchecked, can very well mean that those privileges may be lost to all. The system of rail-pass privileges can only operate within the framework of established rules designed to eliminate abuse. It is for that reason that arbitrators have regarded the fraudulent use of a rail-pass as a particularly serious offence, which in the absence of mitigating factors, will justify dismissal. In this regard the Arbitrator would refer to an excerpt taken from the decision of Canadian National Railway Company and Brotherhood Railway Carmen of Canada, 16 October 1990, Michel G. Picher, arbitrator.
Arbitral jurisprudence recognizes that theft is among the most serious of disciplinary infractions. Discharge is frequently viewed as a justified penalty, absent mitigating actors 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).
The Arbitrator is unable to identify any mitigating factors that might serve to militate against the sanction of discharge. The Grievor already had accumulated 40 demerit points to his detriment at the time of the discharge. His record is far from exemplary. All that the Arbitrator has before him is a serious infraction which strikes at the very heart of a Pass Policy designed for the benefit of Corporation employees. The Corporation cannot be faulted for endeavouring to enforce that policy in the decisive manner in which it has in the interest of its employees generally.
For the foregoing reasons the grievance is dismissed.
Montreal, Septembre 15, 1993
(signed) HARMEY FRUMKIN