SHP – 482

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC LIMITED

(the “Company”)

AND

NATIONAL AUTOMOBILE, AEROSPACE AND AGRICULTURAL
IMPLEMENT WORKERS UNION (CAW - CANADA), LOCAL 101

(the “Union”)

GRIEVANCE OF ANDRé PARé

SOLE ARBITRATOR: Michel G. Picher

There appeared on behalf of the Company:

A. de Montigny – Labour Relations Officer, Montreal

G. St-Pierre – Human Resources Coordinator, Montreal

And on behalf of the Union:

A. Rosner – National Representative, Montreal

S. Levert – Regional Vice-President, Montreal

André Paré – Grievor

A hearing in this matter was held at Montreal on May 7, 1997.

AWARD

This grievance concerns the discharge of an employee for the theft of Company property. The joint statement of issue is as follows:

DISPUTE:

The discharge of St. Luc Diesel Shop machinist André Paré, Employee No. 278027, on May 2, 1996.

JOINT STATEMENT OF FACTS:

On March 26, 1996, representatives of the Company’s investigation department seized Company possessions from A. Paré’s home.

On May 2, 1996, A Paré was discharged for “having stolen Company possessions which were found at your home on March 26, 1996.”

JOINT STATEMENT OF ISSUE:

The Union submits that considering the mitigating factors in this case, Mr. Paré should be reinstated into his position.

The Company disagrees with the Union’s claim.

It is agreed that Mr. Paré was illegally in possession of a number of items belonging to the Company. A chain block, five pocket lamps, 20 batteries, a first-aid kit, work gloves, a set of five screwdrivers and two hammers were among the objects found at his home. The Grievor never denied taking these items without permission. On the contrary, he was very forthcoming in the answers he gave to the Company police officers.

Mr. Paré explained that the chain block and the first-aid kit were taken from the St. Luc Shop. The other items were removed from a container at the Angus Shops at the time of their closure in 1992. There is no doubt that Mr. Paré dealt honestly with his actions during the Company investigation and during the arbitration. He made no attempt to hide the truth and, in the arbitrator’s opinion, expressed sincere regret for his actions.

It is well established that, in general, theft of Company property is considered detrimental to the bond of trust essential to the relationship between employer and employee. Ordinarily such offences constitute, prima facie, just cause for discharge (see CROA 806, 824, 859, 860, 937, 986, 1980 and 2706). However, in exceptional cases, there may be mitigating circumstances that would justify reducing the punishment at the arbitrator’s discretion (see CROA 2210, 2368 and 2471).

In the instant case, mitigating factors abound. First, Mr. Paré is an employee with 25 years of good service. During that time, he was never seriously disciplined except once in 1976 for his participation, along with many others, in a national, one-day strike, a general demonstration against the anti-inflation act of the day.

More importantly, the evidence before the arbitrator shows that the Grievor is an alcoholic, and that he went through a period of substance abuse. These problems, and serious problems in his married life, contributed to general conduct that left much to be desired in what he calls his “social awareness.”

The material before the arbitrator shows that for some years now, the complainant has been trying to recover from his personal problems, including his substance abuse. He has been sober since November 1995, and regularly participates in Alcohol Anonymous activities. Overall, the Arbitrator believes that the facts of this grievance are similar to those in CROA 2210, and that the bond of trust between Mr. Paré and the Company can be mended, given certain measures to protect the employer’s interests.

The grievance is therefore allowed in part. The arbitrator orders that Mr. Paré be reinstated into his employment without loss of seniority and without compensation for his lost wages and benefits. As a condition of his return to work, however, the Grievor must abstain from using alcohol or drugs. In addition, for two years after his reinstatement, he must participate in AA meetings regularly. An officer of that organization must provide the Company with written certification of his participation every three months for the two year period. Failure to satisfy these conditions shall be grounds for the Grievor’s discharge.

Dated at Toronto, this May 30, 1997

(signed) MICHEL G. PICHER

ARBITRATOR