SOLE ARBITRATOR: Michel G. Picher
There appeared on behalf of the Company:
Rob Reny – Human Resources Associate, Surrey
D. Curtis McDonnell – Counsel, Montreal
Sylvie Michaud – Business Partner, HR, Surrey
Susan Blackmore – Labour Relations Associate, Edmonton
Stephanie Ziemer – Human Resources Associate, Vancouver
And on behalf of the Union:
J. R. Moore-Gough – President, Local 100
B. R. McDonagh – National Representative, CAW
J. Burns – Vice-President, Mountain Region, Local 100
T. Solmundson – Grievor
A hearing in this matter was held in Calgary, Alberta on Monday, November 13, 2000
This arbitration concerns the discharge of Car Mechanic Terrence Solmundson for the possession and consumption of marijuana while at work, as well as theft of Company property. The allegations which form the basis of the grievor’s discharge came to the Company’s attention when his ex-wife disclosed to the CN police the content of the grievor’s statements made during the course of an examination for discovery. It is common ground that the discovery process was in relation to an acrimonious divorce and custody dispute between the grievor and his former wife, in relation to the custody of their only child. In an interim award herein dated May 15, 2000 the Arbitrator ruled, contrary to the objection of the Union, that the content of the examination for discovery was not privileged, and could be admitted into evidence. The matter therefore proceeded to be heard on its merits, resulting in this award.
For the purposes of this arbitration the only evidence before the Arbitrator is the statements of the grievor himself, made both during the course of the examination for discovery in his divorce proceedings and during the ensuing Company investigation conducted on December 16, 1996. The grievor was discharged on January 20, 1997.
Mr. Solmundson was hired by the Company in May of 1982, and maintained a discipline free record from the date of his hire until the events giving rise to his discharge. By his own admission he and his former spouse became involved in a life-style that included the almost daily consumption of marijuana. He admits to having taken marijuana cigarettes with him to the workplace, and by his own account to having consumed cannabis on the job on one or two occasions. He estimates that those events would have been in approximately 1991 or 1992. During the course of the disciplinary investigation conducted by the Company Mr. Solmundson indicated that he had in fact not consumed marijuana for some six months to a year previous to that time, perhaps since mid-1994. He relates that he gave up both drugs and alcohol at the time, being concerned about his son, and the custody issue.
The examination for discovery also involved information with respect to certain Company property which came into the possession of Mr. Solmundson. The items involved included a old-fashioned wringer washing machine, a shovel, a drill, a block and tackle mechanism referred to as a “come-along”, as well as pillows, blankets, paper towels and plastic garbage bags. The grievor relates that certain of the items which he took for his own use he viewed as having been thrown away by the Company. For example, he describes the wringer washer as being in doubtful condition and having been left standing outdoors. According to Mr. Solmundson the come-along was used to pull his motorcycle out of the mud, and was subsequently returned to the Company. By his account certain of the items which he took were, he believed, taken with the knowledge or permission of his foreman at the time. He states that certain things, such as the paper towels, were ends of rolls which were discarded before being fully utilized. The uncontradicted evidence of Mr. Solmundson is that following the examination for discovery, conducted in the spring of 1995, he returned the items which he had taken from the Company, with the obvious exception of the paper towels and garbage bags which had been utilized. The employee’s representatives note, and the Arbitrator accepts, that that appears to have been implicitly accepted by the Company, which made no effort to contradict the grievor’s assertion in that regard, or to obtain a search of his home to confirm whether he remained in possession of any Company equipment or material.
It is trite to say that the consumption of narcotics while at work, and theft of Company property are, of themselves, prima facie grounds for the most severe form of discipline, up to and including discharge. In any matter of discipline, however, each case must be assessed on its own facts, with due regard to all factors, including any mitigating factors in evidence. In the instant case the Arbitrator is satisfied that the grievor’s conduct was plainly such as to attract the most severe form of discipline, but that there are important issues of mitigation to be weighted. Firstly, as noted above, Mr. Solmundson worked for a substantial number of years and maintained an exemplary discipline free record during all of that time. The Arbitrator is also prepared to conclude, on the evidence adduced, that for a period of his life the grievor was deeply involved in the drug culture related to marijuana. He was a regular, if not daily, consumer of that drug, although the only evidence before the Arbitrator would indicate that his consumption of cannabis at work was confined to one or two occasions. Most significantly, the evidence before me establishes, and I accept without reservation, that at the time of his marriage break-up and custody battle, in which primary custody of his son was awarded to him, Mr. Solmundson stopped all consumption of drugs and alcohol. He has, for some six years, been free of marijuana use and has, as evidenced in testimonial documents placed in evidence, comported himself as a responsible parent and good citizen.
There are also mitigating factors which attach to the alleged theft of Company property. While it is true that the taking without permission of items which may appear to have been discarded by the Company may constitute theft, the evidence does indicate that the grievor never sought to gain monetarily by his use of Company equipment or materials. Prior to the Company’s own investigation he returned virtually everything which was in his possession. It does not appear disputed that certain of those items may well have been broken and truly discarded, and that he believed that he could take them. With respect to the issue of rehabilitation, it is noteworthy that following the discovery proceedings, and the return of the Company’s property, Mr. Solmundson followed proper procedures in obtaining written approval to take possession of discarded objects or material.
As the Union’s representatives stress, discipline is not intended as punishment, but rather as an avenue towards rehabilitation. While as a general rule acts of theft may be seen to undermine the bond of trust essential to the employment relationship, it is incumbent upon a board of arbitration to examine closely the facts relating to an alleged theft and to determine whether in fact the individual in question can be returned to a relationship of trust with the employer. That is reflected in the recent award of Arbitrator J.F.W. Weatherill in Canadian National Railway Company and the National Automobile, Aerospace, Transportation and General Workers of Canada (CAW) (grievance of A. Croisetière), an unreported award dated June 28, 2000. Similar lines of analysis are to be found in the award of Arbitrator Frumkin in St. Lawrence and Hudson Railway (Nobarian grievance) an award dated November 28, 1987, and an award of this arbitrator in Canadian Pacific Railway (Albert grievance), an unreported award dated November 22, 1999.
With respect to the issue of theft in the instant case, the uncontradicted evidence is that following the disclosures which emerged during the discovery process, some of which involved items which the grievor viewed as having been discarded by the Company, he returned everything to his place of employment, albeit without advising his supervisors. The evidence further confirms that subsequently, whenever he wished to have something which the Company was prepared to discard he went through the proper procedures and obtained written permission to take it. In these unique circumstances I am satisfied that there is reason to believe that the grievor appreciates the importance of being fully open with his employer, and can be trusted to respect the Company’s property, including discarded items, in the future.
On the whole the case before the Arbitrator reveals an employee of exemplary service whose life took a tragic turn, and who has done much to place himself back on the road to responsible parenthood and good citizenship. While Mr. Solmundson’s failings were serious, his candour throughout, his obvious regret of his past actions and his significant change of life-style, maintained over several years since his discharge, show him to be a person deserving of a second chance. I am satisfied that in these circumstances the grievor can be returned to work, on conditions fashioned to protect the Company’s interests.
The grievance is therefore allowed. The Arbitrator directs that Mr. Solmundson be reinstated into his employment, without compensation or benefits and without loss of seniority. The grievor’s reinstatement shall be conditional on his accepting to be subject to random drug testing for a period of not less than two years, such testing to be conducted on a random and non-abusive basis. Any positive drug test, or the failure to take a drug test when requested, will result in the grievor’s discharge, with recourse to arbitration only for the purpose of determining whether the conditions of this award have been violated.
I retain jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this award.
November 20, 2000 (signed) MICHEL G. PICHER