IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND
GENERAL WORKERS UNION OF CANADA (CAW-CANADA)
RE DISMISSAL OF DANIEL PATRY
Sole Arbitrator: Michel G. Picher
Appearing For The Company:
G. Pépin – Labour Relations Officer, Calgary
G. St. Pierre – Human Rresources Coordinator, Montreal
Appearing For The Union:
A. Rosner – National Representative, Montreal
S. Levert – Vice-President, Local 101, Montreal
S. Antinozzi – Local Representative, Montreal
D. Patry – Grievor
A hearing in this matter was held in Montreal on Friday, January 17, 2003
This arbitration concerns the discharge of an employee for theft of Company tools and equipment. The Company maintains that the actions of the grievor were such as to undermine the bond of trust essential to the employment relationship. The Union takes the position that the grievor’s personal circumstances provide mitigating grounds for relieving against the penalty assessed.
The facts are not in substantial dispute. The grievor, Carman Daniel Patry, is an employee of some twenty-nine years’ service who worked at the St. Luc Yard in Montreal. Following a tip which it received from a member of the grievor’s family, on March 26, 2002 the Company, through the services of two CPR police officers, conducted a search of the grievor’s residence. The search revealed a number of items which the grievor readily admitted he had taken from Company property, including power tools of various kinds, a pump, an electric heater, flashlights, industrial cleanser, work gloves and other similar items. It appears that the grievor has been made the subject of a criminal charge for the possession of stolen goods.
There can be no doubt but that Mr. Patry was extremely forthcoming at the time of the police investigation, and consistently thereafter to the point of this arbitration. He made no attempt to deny the origins of any of the tools or materials found in his home, admitting that while some of them may have been taken from scrap bins, others were in fact taken from their active service at various locations in the workplace, over a substantial period of time. Although advised of his right to refuse to make any statement and to retain legal counsel, the grievor waived his rights and was fully open and forthcoming with the investigating police officers and subsequently at the Company’s own disciplinary investigation.
At the investigation the grievor tabled a written statement admitting to his wrongdoing and expressing substantial regret and remorse for his actions. In that letter he also related a number of personal circumstances which may to some extent explain the erratic behaviour which led to the acts of theft and ensuing discipline. Specifically, he indicated that he suffered from alcoholism, a condition of some years’ standing which he had never previously addressed. He specifically asked for immediate assistance in dealing with that problem, and also advised the investigating officer of personal family difficulties he had been through, including a difficult divorce.
The record discloses, beyond controversy, that after these events, just prior to his discharge, Mr. Patry successfully followed an in-patient detoxification treatment for alcoholism at La Maison le Semeur. He successfully completed the treatment, and has remained free of any alcohol consumption from that time to the present, having assiduously attended meetings of Alcoholics Anonymous, as established in the documentary evidence tabled at the hearing.
There can be little doubt but that theft of the kind engaged in by the grievor would, prima facie, suggest the penalty of discharge as the appropriate disciplinary response, by the failure of the bond of trust underlying the employment relationship. However, the assessment of such a penalty cannot be automatic, and regard must be had to the facts of each individual case. In some cases circumstances may be present which justify the conclusion that the relationship of trust can be repaired, and that an order of reinstatement is appropriate. That may happen, for example, where evidence indicates that the employee’s aberrant behaviour arises in connection with a psychological or medical condition or of personal stresses which may justify a second chance, particularly where good evidence of a rehabilitative course of action is brought forward. An example of such an approach is reflected in SHP 539, a grievance involving Canadian National Railway Company and CAW, Local 100, concerning the termination of employee T. Solmundson. In that award, in reinstating the employee the arbitrator made the following comments:
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.
(See also SHP 528 (Weatherill), and SHP 482.)
In the Arbitrator’s view, in the instant case substantial mitigating value must be attributed to the length and quality of the grievor’s service to the Company. Employed for some twenty-nine years at the time of his discharge, Mr. Patry had recorded a positive disciplinary record. The only confirmed discipline on his record is a single assessment of ten demerits assessed in 1998 for a minor rule violation. In the Arbitrator’s view, that record, coupled with the fact that the grievor has been at all times open and honest as well as contrite, and the fact that he has overcome substantial personal difficulties, including the illness of alcoholism, should weigh heavily in considering whether he can be restored to employment in a manner consistent with the renewal of the bond of trust between himself and his employer. In my view this is an appropriate case for an arbitral remedy which achieves that end, while protecting the legitimate interests of the Company.
The grievance is therefore allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, without loss of seniority and without compensation for wages and benefits lost. The grievor’s reinstatement shall be conditional, however, upon his agreeing to be subject to random drug or alcohol testing during a period of not less than two years from the time of his reinstatement. During that same period of two years he shall provide to the Company, on a quarterly basis, documentary evidence confirming his on-going participation in the activities of Alcoholics Anonymous or some similar organization acceptable to both parties. The failure of the grievor to adhere to the conditions of his reinstatement shall render him liable to discharge.
The Arbitrator retains jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this award.
Dated at Toronto, this 28th day of January 2003
(signed) MICHEL G. PICHER