IN THE MATTER OF AN ARBITRATION
BETWEEN: CANADIAN NATIONAL RAILWAY COMPANY
AND NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS
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.
The Dispute and Joint Statement of Issue in this matter are as follows:
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