SHP 528
IN THE MATTER OF AN ARBITRATION
BETWEEN: CANADIAN NATIONAL
RAILWAY COMPANY
AND NATIONAL
AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS
OF CANADA
AND IN THE MATTER OF THE GRIEVANCE OF A. CROISETIÈRE
SOLE
ARBITRATOR: J.F.W. Weatherill
A hearing in this matter was held at Montreal on
June 20, 2000.
A. Rosner, for the union.
D. Laurendeau, for the company.
AWARD
The
Dispute and Joint Statement of Issue in this matter are as follows:
LITIGE:
Congédiement de M. Alain Croisetière, Mécanicien, Garneau
EXPOSÉ DU CAS:
M. Alain Croisetière a été congédié le 14 janvier 1999 pour “avoir eu
en sa possession et sans autorisation du matériel de la Compagnie à votre
ancien domicile situé au 555 - 118 rue Shawinigan Sud Qc”.
Le syndicat soutient que la sanction disciplinaire imposée à M.
Croisetière est trop sévère et demande la réintégration du réclamant à son
poste de travail.
La Compagnie n’est pas d’accord.
Les
plaidoiries lors de l’audience en cette affaire ont été faites en anglais, par
suite, c’est dans cette langue que les présents motifs sont élaborés.
The
grievor, a Machinist whose classification at the time of his discharge was that
of Heavy Duty Mechanic, was hired by the company in March, 1977. At the time of his discharge his discipline
record was clear, and the evidence is that he had never been disciplined in the
entire course of his employment with the company. It would appear that he was regarded, in general at least, as a
good employee.
There
is no dispute as to the facts. On
January 14, 1999, the grievor’s former wife informed the company police that
there was company property at her residence, where the grievor had formerly
lived. The company investigated at
once, and discovered a considerable number of items, essentially tools and
supplies, belonging to the company.
The
grievor was questioned about this on the same day. He immediately admitted that he had these items, explaining that
he had “borrowed” them over a number of years.
He advised the police that there were several other items, a number of
which were in the trunk of his car, and some of which were at his girlfriend’s
home. These were recovered.
During
the police investigation of this matter and later at his employment
investigation, the grievor referred sometimes to his having “borrowed” the
items and sometimes to his having “taken” them. With the exception of one item, a ladder, which was indeed
borrowed with the explicit permission of the supervisor (who made a note of it,
although not on the appropriate form), any “borrowing” by the grievor was
casual, although it would appear that the supervisor was aware of it, on some
occasions at least. In other cases, the
grievor simply took the items some of which, such as gloves, were regularly issued
to employees for general use. It may be
that in the case of items such as those, the grievor’s possession of them, even
off the company premises, should not be said to have been “unauthorized”. In the case of certain tools, however, there
is no doubt that the grievor’s possession, and particularly the prolonged
possession of such items, was indeed unauthorized.
Whether
or not the grievor recalled a particular rule against such possession, he ought
to have been aware, and indeed he did recognize, that it was wrong. In the employment investigation, when asked
if he knew the company’s policy about such matters, he replied:
“Je ne connaissais pas ce règlement mais je savais que logiquement
lorsqu’on emprunte quelque chose, on doit le retourner”.
There
can be no doubt, and the union does not suggest there should be any, that for
most items at least, the grievor’s taking of them and (for those items really
borrowed) the grievor’s retention of them were wrong. The grievor acknowledged this without hesitation, immediately
drawing to the company’s attention the existence of further items. He promptly wrote a letter to his
supervisor, apologizing for the harm he had caused and acknowledging that he
was in the wrong.
In
these circumstances, while both parties of course agree there were grounds for
discipline, the issue before me is one of penalty only, and in particular
whether or not there was just cause for discharge. The grievor’s offence, while perhaps not coming within the strict
definition of “theft” (no criminal charges were laid) was, as an employment
matter, an offence of a generally similar nature.
In
cases of this sort (although each case is different), it is important to
characterize what has occurred as accurately as possible, even although this
may necessarily involve more reliance on instinct than is desirable. In the St.Lawrence
&Hudson (Nobarian) case
(November 28, 1987, Frumkin) where, as here, a long-service employee had
misappropriated a substantial amount of company property, the union position
was that “the Company has improperly characterized the actions of Mr. Nobarian
as theft”. The arbitrator concluded,
quite correctly in my respectful view, that “there is certainly ample and
compelling evidence - - to support a conclusion that the Grievor wilfully
misappropriated property, which he knew to belong to the Company, for his own
personal use and in so doing placed his honesty and integrity into
question”. In that case, contrary to
the present case, the grievor at first denied that he was in possession of any
property belonging to the company, and it was only when the tools were
discovered that he offered a number of explanations - which the arbitrator did
not accept - as to the manner in which they came to be in his possession. It may also be noted that in that case it is
not stated that the grievor had, as the grievor in the instant case has, never
been the subject of a disciplinary measure.
In
the more recent Canadian Pacific (Albert)
case, (November 22, 1999, Picher), a number of items belonging to the
company were found at the home of the grievor, who had been laid off. Criminal charges were laid, and the grievor
in that case pleaded guilty to possession of stolen goods, for which he was fined. At the arbitration hearing, the grievor gave
an explanation for his possession of the company’s property. This was, essentially, that he kept certain
tools with him as a matter of convenience, since his duties sometimes required
him to work away from the company’s shop; that he expected to be recalled to
work and would need them again in the course of his work; that some had been
borrowed with permission (albeit not in writing); and that he had simply
forgotten to return them. In that case
the grievor had sixteen years’ service and no substantial discipline
record. The arbitrator, having regard
to all of the circumstances, including the grievor’s demeanour as a witness,
found the grievor’s explanation to be credible, and awarded that he be
reinstated in employment without compensation.
The
two cases just cited, with each of which, with respect, I agree, when taken
together indicate roughly where a line is to be drawn in characterizing the
behaviour of an employee who is improperly in possession of company property. Theft, it is generally held, “breaks the
bond of trust which is at the root of the employment relationship” (Canadian Pacific (Albert), above, at
p. 2, and cases cited). In the
instant case, the grievor was, at best, extremely careless with the company’s
property, about which he had a duty to be careful. In the circumstances before me, however, and on the balance of
probabilities as I see it, the grievor has not been shown to be a thief, and
the possibility of a proper employment relationship has not been
destroyed. I am supported in reaching
this conclusion by the grievor’s long and very good employment record, by his
prompt recognition of being at fault and his immediate and thorough cooperation
with the company.
For
the foregoing reasons, it is my conclusion that there was not just cause for
discharge in the circumstances of this particular case, although of course
there was occasion for the imposition of very substantial discipline. It is my award that the grievor be
reinstated in employment forthwith, without loss of seniority, but without
compensation for loss of wages or benefits.
DATED AT OTTAWA,
this 28th day of June, 2000
_____________________
J.F.W. Weatherill,
Arbitrator.