SHP : MARTENS, D.J.

AWARD

This arbitration concerns the discharge of an employee for theft. The issues in dispute are fairly reflected in the Dispute, Joint Statement of Fact and Joint Statement of Issue filed at the hearing which read as follows:

DISPUTE:

Dismissal of Carman D.J. Martens, Winnipeg.

JOINT STATEMENT OF FACT:

On October 29, 1996, Carman Martens was dismissed for:

“… theft of Company material and personal belongings of your fellow employees, at Winnipeg, Manitoba.”

JOINT STATEMENT OF ISSUE:

It is the position of the Union that:

Ø The Company has acted in an arbitrary and excessive manner with respect to the dismissal of Mr. D.J. Martens.

Ø Mr. Martens was suffering from a panic disorder and depression at the time of the incident which contributed to his poor judgement.

Therefore, the Union requests that Mr. Martens be reinstated forthwith without loss of seniority, with full redress for all lost wages, benefits and losses incurred as a result of his dismissal, including, but not limited to, interest on any monies owing.

The Company denies the Union’s contentions and claim.

Certain of the facts central to this case are not in dispute. The grievor, Mr. D.J. Martens, had some eighteen and one-half years of service with the Company when he was discharged from his position as a carman at Winnipeg in October of 1996. As noted in the documentation cited above, Mr. Martens was discharged for having stolen from his fellow employees, as well as from the Company. As the facts related below indicate, the incident leading to his discharge was highly unusual.

Shortly before the incidents giving rise to the grievor’s termination Mr. Martens had previously been discharged by the Company for an alleged abuse of workers’ compensation benefits. The record filed before me indicates that in the summer of 1995 the Company suspected that a work-related elbow and back injury in relation to which the employee was in receipt of workers’ compensation benefits while absent from work were not in fact legitimate injuries, as a result of which he was placed under video-tape surveillance at his home by private investigator retained by the Company. The Company ultimately discharged Mr. Martens for alleged fraudulent abuse of workers’ compensation benefits. The matter was grieved to arbitration before Arbitrator Jack M. Chapman, Q.C. In an award dated May 23, 1996 Arbitrator Chapman found that the video-tape evidence secured by the Company was admissible, but that the surveillance evidence and the grievor’s medical evidence combined did not sustain the allegation of the Company that there was any intent on the part of the grievor to fraudulently claim workers’ compensation benefits. Consequently the grievance was allowed entirely, with the grievor being reinstated with full compensation for wages and benefits lost.

The record reflects that Mr. Martens was eventually cleared as physically fit to return to full duties on June 6, 1996, and resumed service at the Winnipeg Car Department. The evidence before the Arbitrator confirms that on the evening shift of June 22, 1996 Mr. Martens was assigned to work with two other employees, Carman Richard W. Martin and Carman G. Vandenbossche in the vicinity of the Winnipeg Tank Tracks. Mr. Vandenbossche relates he was in the Weston Car Shop employee locker room at approximately 21:30 when he observed Mr. Martens forcing employee lockers open in the Car Shop change room. In his statement at the Company’s disciplinary investigation Mr. Vandenbossche relates the following:

When I entered the change room Jimmy was pulling open locker doors. I looked his way, saw a gym bag in his hand and asked what the fuck he was doing. He answered in a startled voice “You don’t know what it’s like to be without money, I need shampoo and soap at home.” Not being mentally prepared for this I walked away from Jim and to the best of my knowledge Jim left the change room. I washed up and left. I did not see what he had in the gym bag.

Mr. Martin relates that in the early part of the evening he and Mr. Vandenbossche were sitting in the cupola of a caboose at the tank track taking their coffee break. Mr. Martens then returned from the carshop carrying what Mr. Vandenbossche described as “what appeared to be a metal red box.” Mr. Martin states that: “He then came into the van, at which time he said to the both of us that he smashed eight to twelve locks to find a router.”

Mr. Martin further states that on another occasion during the same tour of duty Mr. Martens approached him in the caboose carrying a black sports bag. He says that the grievor opened the bag and proceed to show Mr. Martin items that he had taken from the employee lockers, including the bag itself, shampoo, hair conditioner, used hand soap, a hair dryer and a handful of change.

Obviously concerned by what they had witnessed, Mr. Martens’ two work mates came forward to supervisors with an account of what they had seen on the evening of June 22, 1996. A Company investigation ensued, as a result of which Mr. Martens admitted to having taken a small amount of change, totally approximately $4.00, as well as soap and toiletries and a gym bag from the lockers of a number of employees. During the course of his own disciplinary statement Mr. Martens made the following admission and comment:

I took it upon myself and entered the South employees’ locker room at the Car Shop. I opened the doors of approximately 20 lockers which were not locked, and I took three bottles of shampoo, one bar of soap and four dollars in loose change. I did so as I was in dire financial need of these items, due to the Company holding back funds owed to me (back wages) which created extreme mental stress on obtaining such minimal items. I admit that I did wrong in taking these items and I am willing at this time to make restitution for the items I took, approximate value of twenty-five dollars.

On the strength of the information available to it, the Company concluded that the grievor did steal items from the personal effects of other employees, as well as a router belonging to the Company, as a result of which he was discharged.

The facts, standing alone as related above, would amply sustain the Company’s decision to terminate Mr. Martens. It is well established that workplace theft undermines the bond of trust essential to the employment relationship and, absent mitigating circumstances, will generally justify the termination of that relationship. In the instant case if the bare facts disclosed only that Mr. Martens engaged in the admitted pilferage of the personal effects of other employees there would be little reason to consider a reversal or reduction of the penalty assessed by the Company. There is, however, much more in the nature of mitigating and attenuating evidence which must be carefully considered.

The material before the Arbitrator confirms, without dispute, that Mr. Martens has suffered mental and emotional problems for which he has been under medical attention for a substantial period of time. The record discloses that as early as October of 1994 Mr. Martens availed himself of the services of the Company’s EFAP referral agent, Mr Bruce Gudmundson. A letter from Mr Gudmundson dated September 18, 1997 confirms that Mr. Martens was then referred to a medical specialist for psychological counselling, at his own request. A letter dated March 8, 1998 from Dr. Tom Thompson, a psychiatrist, confirms that Mr. Martens was in his care between April of 1995 and October of 1996. He relates that Mr. Martens “… suffered from a panic disorder with depression” for which he was treated with psychopharmacological medications. A more recent report on the grievor’s condition is related in a letter from Dr. B.W. Komenda dated January 17, 1998. According to the content of that document the grievor has recovered substantially, save that he still suffers a degree of mild anxiety. It appears that he is no longer on medications.

Apart from the medical evidence filed, there is objective evidence before the Arbitrator to sustain the concern expressed by the Union’s representative with respect to Mr. Martens’ state of mind at the time he engaged in what appears to have been impulsive and uncharacteristic acts of theft. Firstly, his fellow employee, Mr. Martin, relates his own personal involvement with Mr. Martens. He recounts witnessing the severe depression which the grievor suffered over a substantial period of time, in relation to both the loss of his employment for alleged fraud and the simultaneous disintegration of his family life and marriage. Mr. Martin relates the tragic circumstance of a suicide attempt by Mr. Martens which, it appears, was averted only because Mr. Martin alerted police as to his fears for his co-workers intentions on the day of the occurrence. It is not disputed that Mr. Martens was in fact hospitalized on that occasion. It also appears that Mr. Martens was involved in a second suicide attempt, on another occasion.

The second aspect of the objective evidence which the Arbitrator considers relevant is the circumstances of the theft itself. Needless to say there is something prima facie extraordinary, not to say irrational, in an employee openly stealing from other employees within view of his or her work mates. As a general rule employees are no less tolerant of thieves in the workplace than are employers themselves. It is therefore not uncommon in arbitration cases to see employees engaged in theft or fraud being exposed, whether anonymously or otherwise, by fellow employees offended by their actions. In that context, it is difficult for the Arbitrator to understand the thinking of the grievor, to the extent that he openly stole from other employees in the presence of Mr. Vandenbossche, and afterwards displayed the fruits of his theft to Mr. Martin. His course of conduct is not, in the Arbitrator’s view, one which can be characterized as rational, or consistent with the mind and scheme of a systematic thief who would normally wish to avoid detection. Additionally, his comments to Mr. Vandenbossche, and subsequently to the Company, with respect to his impecunious condition, a fact confirmed by Mr. Martin who relates that he loaned some money to Mr. Martens who was penniless at the time he returned to work, gives further substance to the argument of the Union that the grievor was suffering from a psychological condition of stress and clinical anxiety at the time he committed the theft which led to his discharge. Indeed, there is nothing in the prior record of the grievor, over a period of more than eighteen years, which relates to any form of discipline for dishonesty, which underscores the uncharacteristic and aberrant nature of the grievor’s actions on the night of June 22, 1996.

The whole of the material before the Arbitrator discloses that Mr. Martens has suffered greatly by reason of a medical and emotional condition beyond his control. He had been under professional medical care for that condition on the date of the incident giving rise to his discharge. It does not appear disputed that his state of anxiety at the time of his initial disciplinary investigation required an adjournment of the proceedings, as he was not then mentally fit to deal with the matter. In the circumstances, therefore, while I do not consider it necessary to resolve certain minor differences between the parties as to whether the grievor forced locks to gain access to the lockers, or indeed whether it has been sufficiently proved that he took a router belonging to the Company, I am satisfied that the overall circumstances of the case merit a reduction of the penalty assessed against Mr. Martens and his return to work, subject to certain conditions fashioned to protect the Company’s legitimate interests.

The grievance is therefore allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, without compensation for wages and benefits lost, and without loss of seniority. I am satisfied that no order of compensation is appropriate in the instant case, given that the detail of the grievor’s medical circumstances came to light only after his termination. The grievor’s reinstatement is, however, conditional upon his being medically examined in respect of his physical and mental condition, by a physician mutually acceptable to the parties, or appointed by the Arbitrator failing their agreement, as fit to return to his duties. I retain jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this award.

Dated at Toronto, April 30, 1998

(signed) MICHEL G. PICHER

ARBITRATOR