SHP563

AWARD

This arbitration is in relation to the dismissal of Carman R. Harrison of the Coquitlam Car Shop for the accumulation of demerits. The Union maintains that the Company violated the procedures mandated by the collective agreement with respect to time limits in the investigation of a disciplinary infraction. It further maintains that there was no just cause for the two separate assessments of demerits made against Mr. Harrison and, alternatively, submits that if discipline was deserved, discharge is excessive in the circumstances. The Company denies any violation of the procedural requirements of the collective agreement and asserts that the bond of trust essential to the employment relationship has been ruptured by what it characterizes as deception and fraudulent wage claims made by Mr. Harrison.

The dispute and some of the factual background is reflected in the Joint Statement of Facts and Issue filed at the hearing. It reads as follows:

DISPUTE:

Dismissal of Carman R. Harrison of Coquitlam Car Shop, Coquitlam, BC.

STATEMENT OF FACT:

On July 20, 2002, Carman R. Harrison’s record was debited 55 demerits for:

“… being absent from the workplace without authorization, taking a Company vehicle off property without authorization to conduct personal business, being dishonest within a formal investigation, and fraudulently claiming compensation from time not worked, on April 21, 2002 at Coquitlam Car Facility.”

On July 12, 2002, the Union received written advice that Carman Randy Harrison had been notified that his record was debited with a further 25 demerits for:

“… your fraudulent submission of a time claim for time not worked on July 2, 2002 at Coquitlam Car Facility.”

In addition, on July 20, 2002, Mr. Harrison was advised by the Company discipline form 104 that he had been dismissed from service for:

“… the accumulation of demerit marks under the Brown System of Discipline, Coquitlam, British Columbia.”

STATEMENT OF ISSUE:

It is the contention of the Union that:

· The Company exceeded the mandatory 28 day time limit outlined and prescribed in Rule 28.3 of the Grievance Procedure when it issued discipline to Mr. Harrison on July 2, 2002 in regard to the 55 demerits debited to his record;

· The discipline of 55 demerits issued for the particular infractions identified by the Company in their form 104 was excessive;

· The Company did not establish wrong doing on Carman R. Harrison’s behalf sufficient to give the Company cause to dismiss him.

· The discipline of 25 demerits issued for the particular infractions identified by the Company in their form 104 was excessive;

· Carman R. Harrison was treated in an arbitrary, discriminatory and an excessive manner in regard the demerits issued and to his dismissal;

Therefore, with regards to the foregoing, it is the position of the Union that Carman R. Harrison should be returned to duty forthwith without loss of seniority, with full redress for all lost wages, benefits and losses incurred as a result of his dismissal, including, but not limited to, interest on any monies owing.

The Company denies the Union’s contentions and claim.

The facts in relation to the incidents of April 21 and July 2, 2002 are not in substantial dispute. An employee of twenty-one years’ service, the grievor received discipline on some seven occasions, although his record was free of demerits at the time of the incidents. Under the Brown System the accumulation of sixty demerits or more results in discharge.

On April 21, 2002, the grievor was working the midnight to 08:00 assignment at the Coquitlam Mechanical Facility. His duties also involved occasional travel by way of a Company truck to the Vancouver Intermodal Facility. At or about 06:30 on April 21st, Operations Coordinator Dan Weel received a telephone call from Carman Harrison. Mr. Harrison stated that the Company truck he was driving had broken down by reason of a faulty front ball joint. When the supervisor asked the grievor where he was located Mr. Harrison did not respond, and indicated that he had already called a tow truck and would pay for the towing of the vehicle himself. Upon a return to the Coquitlam facility at approximately 07:20, Mr. Harrison spoke briefly with Mr. Weel, and again declined to give any answer as to where he had been at the time of the truck’s breakdown, stressing again that he had paid for the tow and that the Company would not be required to pay. Not satisfied with the grievor’s explanation, the Company determined to conduct an investigation into the incident. During that investigation Mr. Harrison explained that he was going for breakfast when the truck broke down near the corner of Lougheed and Westwood. He further stated that he could not recall the name of the towing company he utilized, and related that the cost of the towing bill was approximately $60.00.

Suspicious of the grievor’s explanation, the Company’s investigating officer, Process Manager Lunoch, suspended the question and answer session to allow a visit to the site of the breakdown. When he reconvened the investigation at 04:30 following the site inspection he again asked the grievor to verify the location of the breakdown. At that point Mr. Harrison stated that it had been at Westwood and Redwood, a different location from his previous answer. He was also unable to explain why there was no telephone book in the phone booth from which he claimed to have called a number of towing companies he found in the phone book. At the conclusion of that day’s investigation the Company remained sceptical of the account of events being provided by Mr. Harrison. On that basis the services of the Canadian Pacific Police were retained. Although the eventual report from the police indicated that there was no evidence of intentional damage to the vehicle or the vehicle being involved in an accident, the disciplinary investigation nevertheless reconvened on May 31, 2002. At that time Mr. Harrison was able to provide a receipt from Roadway Towing in the amount of $89.30 dated April 21, 2002. That receipt indicated that the truck had been picked up from 72nd Avenue and 144th Street in Surrey. When asked to explain the discrepancy in both the amount of the towing bill and the location of the truck’s breakdown Mr. Harrison related that on the evening in question he discovered that he had on his own person vehicle keys belonging to a friend. He stated that this had occurred before and that he had been given permission to leave work to take the van keys back to his friend. He then stated “… Every time I’ve asked to go for coffee or a burger the answer had always been yes. I tried calling the On-Shift Supervisor with no response and assumed it would be ok. The reason for the discrepancy in locations was panic, unsureness and I was not sure what would happen.”

In the result, the grievor left work without permission, took a Company vehicle without advising any supervisor and without signing it out, as required, and ventured some twenty-five kilometres away from the worksite without permission, leaving his work assignment abandoned. It does not appear disputed that the grievor was absent for a period of approximately two hours, time for which he claimed wages in making out his attendance sheet for that day.

In light of the grievor’s assertion that he had received permission from supervisors in the past to leave for the purpose of returning car keys to his friend’s home in Surrey, the Company interviewed some seven supervisors and reconvened the investigation on June 11, 2002. During that interview, when asked why he claimed eight hours’ pay when he had been absent from the worksite for some two hours, he related that he had been given permission to leave Company property in that manner in the past, while being paid. At that investigation the grievor was presented with memoranda from the seven supervisors, all of whom denied having given him permission to absent himself in that fashion in the past. Although he had not identified any particular supervisor previously, he then indicated that Supervisor Phil Taylor had given him permission to leave in the past. When asked to explain Mr. Taylor’s memo to the contrary Mr. Harrison responded “I can’t explain other people’s actions.”

As a result of the investigation Mr. Harrison was assessed fifty-five demerits on July 4, 2002, some twenty-three days after the conclusion of the investigation process.

The incident of July 2, 2002 is substantially more simple. The grievor called into work on that day to report that he would be late by one hour. A review of his time claim, however, indicates that he claimed eight hours’ pay, having worked for a period of only seven hours. At the investigation of that incident the grievor was reminded that on two prior occasions in the recent past he had once left work early by one hour, and had on the second occasion reported late by one hour, improperly claiming eight hours’ pay in both cases. It is common ground that while those incidents were investigated, they did not result in discipline. The Company nevertheless draws to the Arbitrator’s attention that the grievor had been freshly reminded of the importance of honesty in his timekeeping. The grievor’s reply in relation to the incident of July 2nd was that he had been under stress.

I turn to consider the procedural objections raised by the Union’s representative. Firstly, objection is taken to the fact that in the discipline assessed in relation to the incident of April 21, 2002 the grievor was disciplined, in part, for “… being dishonest within a formal investigation,”. The Union’s representative submits that if the Company wishes to assess discipline against the grievor for a false statement made during an investigation it must separately investigate that offence, and cannot simply add it to the other offences which were the subject of the investigation itself.

That objection is correct. The governing principle was well articulated in CROA 743, an award concerning a dispute between Canadian Pacific Limited and the United Transportation Union, relating to disciplinary investigation provisions similar to those here at issue. In that award Arbitrator Weatherill stated, in part:

I shall deal first with the dismissal. Article 13 (d) of the collective agreement provides that an employee will not be disciplined or dismissed until after investigation has been held, and Article 13 (a) requires the employee to be notified as to the time place and subject matter of any investigation. There was an investigation held in connection with the grievor's alleged failure to comply with the interlocking signal indication. As a result of its analysis of this investigation, the Company concluded that the grievor had lied in the course of that investigation. It then discharged the grievor for that alleged offence. This was, however, a new and distinct subject matter. It was one with respect to which the grievor or others might well have wished to give evidence or to make an explanation. There was, however, no investigation made of that charge. The Company dismissed the grievor on that ground without holding an investigation. That lack was not a mere technicality, but deprived the grievor of a substantial right given him by the collective agreement. Investigation in such a case is a condition precedent to the exercise of the employer's disciplinary authority. There having been no investigation, the discharge must be set aside.

On the basis of the foregoing the Arbitrator directs that the grievor’s record be corrected to strike from the notice of discipline (Form 104) dated July 4, 2002, the words “… providing false and misleading information within a formal investigation”. The Arbitrator is nevertheless satisfied that the balance of the allegations of wrongdoing against the grievor, including absenting himself without authorization, taking a Company vehicle without authorization and fraudulently claiming compensation for time not worked were properly dealt with through the investigation process, and are not therefore null and void.

The second procedural objection raised by the Union concerns the timeliness of the discipline assessed against Mr. Harrison. The Union asserts that Rule 28.3 has been violated. Rule 28.3 reads as follows:

28.3 An employee will not be held out of service unnecessarily pending the rendering of a decision. The decision will be rendered as soon as possible but not later than 28 calendar days from the date the report of the investigation is referred to the officers designated in Step 2 of the grievance procedure unless otherwise mutually agreed.

The Union referred to the Arbitrator a number of prior awards which considered the application of the foregoing provision. In SHP 139, an award in a dispute between Canadian Pacific Limited and the Canadian Council of Railway Shopcraft Employees and Allied Workers, dated January 18, 1983, Arbitrator Weatherill considered the operation of rule 28.3 and the Union’s allegation, in that case, that it had been violated. In finding on the facts of the case before him that the Company did depart from the time limits within rule 28.3 he commented, in part, as follows:

There is no expressed limitation (leaving only the implicit one that it be held within a reasonable time) on the holding of an investigation. It may be, in some circumstances, that a supplemental examination would be proper. Once the investigation is closed, however, and the matter then sent to the appropriate officer for decision, such decision must be rendered “not later than 28 calendar days” from that date.

This Arbitrator does not dispute anything said by Arbitrator Weatherill in SHP 139. It is evident, however, that Arbitrator Weatherill acknowledged that there might well be circumstances where the Company is entitled to properly convene a supplemental examination. That is precisely what occurred in the case at hand. The fundamental defence raised by Mr. Harrison at the continuation of the investigation on May 31, 2002 was to the effect that supervisors had in past given him permission to leave the work premises, and that they had done so at least on one occasion involving the need to return his friend’s van keys. It is on that basis that further information was obtained from the seven supervisors, and the investigation was re-convened on June 11, 2002, at which time the grievor was given the opportunity to rebut the statements of the supervisors.

The case at hand discloses a course of event in which the Company learned different information at various stages of the investigation process and, quite properly, made efforts to obtain information and to give the grievor the opportunity to respond to that information at a supplementary investigation. Unfortunately, the truth emerged only from beneath successive layers of falsehood. In essence, therefore, there was a single continuous investigation caused in no small measure by the grievor’s initial failure to tell the truth, a fact evident from his own admission. In the circumstances the Arbitrator is satisfied that the Company did not violate the spirit or the letter of rule 28.3 by extending the investigation process. This is not a case in which the investigation process was prolonged arbitrarily or abusively for the purposes of a fishing expedition. On the contrary, at each step it was extended because of the nature of the information provided to the Company by the grievor himself. In the result, the fifty-five demerits assessed against Mr. Harrison which issued on July 4, 2002 did come some twenty-three days after the conclusion of the investigation of his conduct surrounding the events of April 21, 2002. No violation of the provisions of rule 28.3 is disclosed in these circumstances.

I turn to consider the merits of the grievance. There can be no question that the course of conduct engaged in by Mr. Harrison in respect of both the incident of April 21 and his time claim for July 2 involve dishonesty, apart from other infractions. Leaving work without authorization, using a Company vehicle for personal business without authorization and without complying with the necessary signing formalities are of themselves serious disciplinary offences. When those offences are compounded, however, by a concerted and repeated course of conduct calculated to conceal the grievor’s actions from the Company, the matter takes an even more serious turn. It is trite to say that honesty is a touchstone of the employment relationship, and that in a work setting where individuals may operate for substantial periods of time without direct supervision the ability of the employer to trust the honesty and reliability of its employees is of the essence of the employment contract itself. It is for that reason that arbitrators find that a failure of that bond of trust justifies an end of the employment relationship.

Mr. Harrison was not forthcoming in a number of ways. He did not initially make sure to obtain permission for the obviously extensive personal errand that he ran for a period of some two hours on the morning of April 21, 2002. He was plainly not honest when he claimed payment for a full eight hours of work on that tour of duty. He was clearly deceptive on the telephone, when he concealed from Operations Coordinator Weel his true whereabouts at the time of the breakdown of the Company’s truck. While it is true that the Company could not assess discipline against him for his dishonesty during the initial stages of the investigation, his failure to be forthcoming is a factor properly to be considered by the Arbitrator is assessing the mitigating and aggravating factors which might have a bearing on the exercise of the Arbitrator’s discretion to substitute a different penalty. It is also arguable that his extensive efforts at concealment undermine the credibility of the grievor’s claim that he had easily obtained permission from a supervisor for the same errand on an earlier occasion.

With respect to the grievor’s improper time claim on July 2, 2002 it is also difficult to reject out of hand the Company’s concern with Mr. Harrison’s fundamental honesty. Only weeks before he had been investigated for similar conduct, albeit no discipline was assessed against him, given the precarious state that he was in following the assessment of fifty-five demerits for the events of April 21, 2002. Regrettably, for reasons he best understands, he again made a claim for monies to which he was not entitled.

Are there mitigating circumstances which would justify a lesser degree of penalty in respect of these incidents? At the hearing Mr. Harrison sought to explain his actions by reason of the fact that he had been under stress as a result of marital difficulties. With respect, the Arbitrator is not persuaded by that explanation. The incident of April 21, 2002 was not a spur of the moment event. It unfolded over a considerable period of time, as did the grievor’s continued fabrication of falsehoods to keep the truth of the event from his supervisors. To achieve that end he fashioned an elaborate lie which he sought to sustain over a significant period of time, until it became apparent that the Company had serious doubts about the veracity of his account. This is not an incident of a momentary error of judgement, nor is the grievor’s explanation supported by any medical or psychological documentation.

Can it be said that the Company was unfair in its treatment of Mr. Harrison? I think not. Given the seriousness of his falsehoods in relation to the incident of April 21, 2002, it is arguable that that incident alone might have justified the Company in deciding that his employment should be terminated. In assessing fifty-five demerits the Company did give mitigating weight to the grievor’s twenty-one years of service, effectively putting him on notice that he must be scrupulously honest in his dealings with the Company in the future. Notwithstanding that forbearance, and notwithstanding a clear message to Mr. Harrison that he must not falsely claim time not worked, on July 2, 2002 he once again gave the Company reason to seriously doubt his honesty by claiming payment for time not worked. The material before the Arbitrator also confirms that the Company has repeatedly assessed twenty-five demerits for employees making false time claims. The Company did not single out Mr. Harrison or treat him in a discriminatory way. In all of the circumstances, the Arbitrator cannot fault the Company for coming to the conclusion that, for whatever reason, the bond of trust between Mr. Harrison and his employer has been severed, and that his continued employment is no longer a viable option.

For all of the foregoing reasons the grievance must be dismissed.

Dated at Toronto, this 16th day of June 2003

_____________________________________________

MICHEL G. PICHER

ARBITRATOR