SHP – 446
IN THE MATTER OF AN ARBITRATION
ONTARIO NORTHLAND RAILWAY
CAW - TCA CANADA, LOCAL 103
IN THE MATTER OF THE GRIEVANCE OF G. SUTHERLAND AND W. ETCHES
SOLE ARBITRATOR: Richard Brown
There appeared on behalf of the Company:
And on behalf of the Union:
A hearing in this matter was held at North Bay, Ontario, August 28, 1997.
Gary Sutherland was dismissed for allegedly engaging in a dishonest scheme to obtain pay without working. William Etches was assessed 20 demerit points for allegedly engaging in the same scheme to help Mr. Sutherland obtain pay for work not done. The incident for which they were disciplined occurred on Saturday, June 22, 1996.
As the only witness to testify at the hearing is Bob Coxford, the mechanical shift supervisor on June 22, the following account of the incident is a summary of his testimony:
At approximately 16:30 hours on June 22, Mr. Coxford telephoned each of the grievors at his home and offered overtime work as car inspectors "letting out" CNR train 450 commencing at 18:00 hours. Both of the grievors agreed to perform this work. When Mr. Sutherland asked with whom he would be working, he was told his co-worker would be Mr. Etches.
Shortly after 18:00 hours, Mr. Coxford called the car inspector’s office to offer the grievors another overtime assignment in the early hours of June 23. Mr. Etches answered the phone and accepted the assignment. When Mr. Coxford asked to speak to Mr. Sutherland, Mr. Etches said his work mate was in the washroom. Mr. Etches then was asked to tell Mr. Sutherland to call the supervisor. A few minutes later, Mr. Etches called Mr. Coxford and said Mr. Sutherland declined to work on June 23.
At this stage, Bob Coxford began to suspect Gary Sutherland had not reported for work as agreed. Mr. Coxford left the ramp office and walked to the car inspectors’ office. On route, he observed Mr. Etche’s driving the car inspectors’ truck towards CNR train 450 without any passenger, placing a black box on the train and doing up hose bags. Mr. Sutherland was nowhere in sight.
Mr. Coxford telephoned Mr. Sutherland’s residence on the car inspectors’ office. When a woman answered, the supervisor said it was Willie, i.e. Mr. Etches, calling and asked to speak to Sudsy, i.e. Mr. Sutherland. Gary Sutherland then came on the line. Asked why he was not at work, Mr. Sutherland answered he had left early. Mr. Coxford said he did not believe this answer and would look into the matter on Monday morning.
Mr. Coxford then observed on the desk in the car inspectors’ office an arrival and departure form bearing the initials BE and GS beside the entry for CNR train 450. Also on the desk were two pink overtime cards, one recording work performed by William Etches and the other recording work performed by Gary Sutherland. Mr. Coxford thought both cards had been filled out by the same hand.
Mr. Coxford remained in the car inspectors’ office. When Mr. Etches returned there, the supervisor asked "How long [has] this game been going on." Mr. Etches replied: "Just today."
Approximately 15 or 20 minutes later, Mr. Sutherland joined Messrs. Coxford and Etches at the car inspectors’ office. Mr. Coxford told Mr. Sutherland that he had been caught red-handed and that his future employment lay in the supervisor’s hands. Mr. Sutherland conceded he had been told he would be terminated if he engaged in further misconduct.
Messrs Coxford, Etches and Sutherland stayed in the vicinity of the car inspectors’ office for approximately two hours. At Mr. Sutherland’s request he spoke with Mr. Coxford in the absence of Mr. Etches and said "five of us are in on this". Mr. Sutherland asked to be let off and begged for his job. At one point, Mr. Sutherland picked up the time card bearing his name and asked Mr. Coxford what he was going to do about it. Interpreting this comment as a request for payment, Mr. Coxford grabbed the card, tore it up, and threw it into the garbage saying: "You’re not fucking going to get paid."
When the grievors parted company with the supervisor, he told them he would decide later whether to report their misconduct.
Between 22:00 and 24:00 hours on June 22, Mr. Coxford prepared notes of what had occurred earlier that evening. On Sunday, June 23, Mr. Coxford searched for the time card bearing Mr. Sutherland’s name. The card was not found in the waste basket in the car inspectors’ office or in the garbage bin outside.
Mr. Coxford’s notes were relayed to John Morrison, superintendent of equipment maintenance. According to Mr. Coxford, Mr. Morrison suggested the supervisor revise his notes. On June 24, he prepared another set of notes. Several matters contained in the first set are not in the second: (1) Mr. Coxford’s subterfuge in identifying himself as Willie when he telephoned Mr. Sutherland’s residence; (2) Mr. Coxford’s comment to Mr. Sutherland that his employment future lay in the supervisor’s hands; (3) Mr. Coxford’s comment in the first report that he delayed his decision in order to let Mr. Sutherland "sweat the weekend out"; (4) Mr. Coxford laughing when Mr. Sutherland said he was turning his life around: and (5) Mr. Coxford’s conduct in destroying the time card as he uttered a profanity.
The second set of notes became part of the record of the disciplinary investigations conducted on June 26, 1996. While the employer contends the union was advised on that date of the existence of another set of notes, the union is not willing to concede, this point. In any event, those notes were produced before the arbitration hearing and the union expressly waived any procedural objection about not receiving them earlier.
Both of the grievors attended the hearing but neither of them testified. Each of them had been questioned at the investigations on June 26. At an investigation held that morning, Gary Sutherland admitted that he did not work on June 22 but denied arranging for another employee to submit a time card for him. Mr. Sutherland refused to answer most of the other questions put to him. At an investigation held on the afternoon of June 26, William Etches confirmed that Mr. Sutherland did not work on June 22, but denied filling out either a time card with Mr. Sutherland’s name or the arrival and departure form entered in evidence. When first asked about saying Mr. Sutherland was in the washroom, Mr. Etches replied he did not recall making this comment. When the matter was revisited later in the investigation, he denied making the comment. Asked about saying "just today" in reply to Mr. Coxford’s question concerning how long the game had been going on, Mr. Etches answered that he did not recall making this comment. He also acknowledged knowing that falsifying a time card was tantamount to theft.
The employer submitted in evidence a report by Bob Fawcett whom the union concedes is a handwriting expert. Using samples of William Etches’ handwriting, Mr. Fawcett concluded Mr. Etches wrote the initials GS on the arrival and departure form for CNR train 450. In cross-examination, Mr. Fawcett conceded he could not say when this entry was made.
As time card fraud is a serious offence, an allegation of this sort should not be sustained unless supported by clear and cogent proof. See CROA 2152 which was cited by the union.
The union suggested I should not accept Mr. Coxford’s evidence because he presented three different stories at various times. While his first set of notes contain less detail than the testimony given at the hearing, the important elements of these two accounts are the same. I see nothing unusual in oral testimony being more detailed than written notes. Does the revision of Mr. Coxford’s notes put his credibility in doubt ? The portions deleted all relate to things said or done by Mr. Coxford, not things said or done by the grievors. In other words, Mr. Coxford did not change his story about the grievors’ conduct. His story in that regard has been consistent throughout. He did edit his notes so as to remove passages which presented him in a poor light and which were not relevant to the allegations of wrongdoing. Whatever his conduct and editing might say about other aspects of his character, they offer little reason to doubt his credibility.
The evidence clearly demonstrates that Mr. Sutherland did not work on June 22, 1996 as he had agreed to do. Indeed, at the investigation on June 26, he admitted not reporting to work.
In my view, the evidence also clearly demonstrates that Mr. Etches entered the initials GS on the arrival and departure form for CNR train 450. This was the conclusion reached by Mr. Fawcett, the handwriting expert who testified under oath and whose evidence in this regard was not challenged in cross-examination. Mr. Etches on June 26, 1996 denied entering these initials, but he was not called as a witness at the hearing to contradict Mr. Fawcett. As Mr. Picher noted in CROA 2813:
It is well established that in proceedings before the Canadian Railway Office of Arbitration, extensive reference may be made to hearsay evidence contained in the record of a company’s disciplinary investigation. However, where there is a substantial conflict in the account of events given by two or more persons, direct evidence in the form of viva voce evidence (i.e. sworn testimony) is generally preferable, and of greater weight, than the hearsay evidence of statements made by an individual during the course of a company’s investigation …
This is not a CROA proceeding, but the parties have agreed to follow the CROA format. Accordingly, I accept the evidence of Mr. Fawcett, who was Cross-examined under oath, rather than the earlier denial of Mr. Etches, who did not testify before me.
Did Mr. Etches also complete a time card bearing Mr Sutherland’s name ? No time card was entered in evidence and none was examined by Mr. Fawcett. According to Mr. Coxford, he destroyed the card in a fit of temper when he thought Mr. Sutherland was asking not only to be let off but also to be paid for work not done. Neither Mr. Sutherland nor Mr. Etches, both of whom were present when Mr. Coxford says he threw away the card, were called as witnesses to contradict him under oath and subject to cross-examination. For the reasons stated in CROA 2813, Mr. Coxford’s testimony carries greater weight than Mr. Etches denial, made during the investigation, about filling out a card for Mr. Sutherland.
Mr. Coxford’s testimony concerning an overtime card bearing Mr. Sutherland’s name is entirely consistent with Mr. Fawcett’s conclusion that Mr. Etches entered the initials GS on the arrival and departure form. This entry indicates that Mr. Sutherland was at work. The obvious reason for such a misrepresentation was to obtain payment for Mr. Sutherland, and payment could not be obtained unless a time card bearing his name was completed. In other words, if Mr. Etches was willing to falsify the arrival and departure form, he was very likely willing to falsify a time card.
The foregoing analysis leads me to accept Mr. Coxford’s evidence about seeing an overtime card bearing Mr. Sutherland’s name. This testimony is consistent with Mr. Fawcett’s conclusion about the arrival and departure form and not contradicted by any testimony from Mr. Etches. As the card was completed in Mr. Sutherland’s absence, it must have been filled out by Mr. Etches, because he was the only car inspector on duty that night.
Having decided William Etches completed a time card bearing Gary Sutherland’s name, I am brought inescapably to the conclusion that Mr. Sutherland participated in a conspiracy to obtain payment for work not done. It is highly unlikely that Mr. Etches would do what he did without any involvement on the part of Mr. Sutherland. Moreover, Mr. Sutherland’s participation in a fraudulent scheme is proven by his admission on June 22. According to Mr. Coxford, Mr. Sutherland said "five of us are in on this". In the circumstances, the only reasonable interpretation is that Gary Sutherland was attempting to obtain payment for work not performed. For the reasons set out in CROA 2813, in the absence of any contradictory testimony from Mr. Sutherland, I accept Mr. Coxford’s sworn evidence that this admission was made.
Were the penalties assessed appropriate in all of the circumstances? Both of the grievors committed a serious offence of dishonesty. They did so with premeditation and not on the spur of the moment. Each at his investigation denied any wrong doing and neither has since recanted this denial or otherwise demonstrated any remorse.
In June of 1995, one year before the instant offence, Mr. Sutherland was disciplined for trying to obtain pay for work not performed. Bearing all of the above considerations in mind, I find discharge to be an appropriate penalty, even though the grievor had fifteen years seniority at the time of his discharge.
William Etches had almost ten years seniority and a clean disciplinary record in June of 1996. The twenty demerit points then levied against him are one third of the number required to sustain a discharge. I find these demerit points also to be an appropriate penalty.
The grievances are dismissed.
DATED AT Manotick, Ontario, this 4th day of September 1997
(signed) RICHARD M. BROWN