Employee claimed he thought he had permission but didn’t follow proper approval procedure
An Alberta company should not have fired an employee for taking company materials without permission, an arbitrator has ruled.
Philippe Gervais, 36, worked at a shop in Mildred Lake, Alta., run by Finning International, a supplier of Caterpillar heavy duty construction equipment based in Edmonton.
On April 14, 2012, Gervais was working a shift set that was scheduled to end three days later. At the end of his set, he planned to drive back to his home in Manitoba with a second-hand truck he had purchased near the Mildred Lake facility.
Two other employees reported that Gervais took Finning equipment and tools in his truck when he left the facility that day. The co-workers said they told Gervais that if he was stealing from Finning he shouldn’t do it in broad daylight, which made Gervais upset. They took photographs of him in his truck and showed a manager, but the manager said the photographs didn’t show any Finning equipment in Gervais’ truck. Gervais left his shift early and didn’t show up on either of the next two days of his shift set. Instead, he drove home to Manitoba early.
The service operations manager sent Gervais an email saying he had to talk to him about “a couple of things,” including the theft allegations. Gervais responded by saying he was upset about the accusations as well as the denial of a leave he had requested due to stress-related issues.
No permission to take equipment
Gervais returned to work at the Mildred Lake facility on May 30 and Finning began an investigation. Gervais was told the company had been told he was taking Finning property and they wanted his side of the story. Gervais acknowledged he had taken an old and damaged tire sling which had been approved by a manager at the time, since it was destined for the garbage anyway. He acknowledged that he didn’t have a movement of goods (MOG) form for the tire sling. Gervais also said the complaint against him was a continuation of harassment by the two co-workers, which had began when they all worked at another Finning facility.
Finning suspended Gervais without pay and sent him back to camp. The manager in question was asked about the tire sling and he denied giving Gervais permission to take it. On June 1, 2012, Gervais was terminated. When he asked why, he wasn’t given a reason but was told “it would all come out at the grievance hearing.”
Once Gervais was given his tool box following his termination, he produced an MOG related to five damaged slings, though it was unsigned by any manager. Gervais admitted the manager wouldn’t formally allow him to take a damaged tire sling to his farm, but claimed the manager implied he would look the other way if Gervais took it. The manager denied making any such implication.
Bullying and harassment
As for his history with the two co-workers who made the complaint, Gervais indicated they were part of a group of employees at another facility who had abused and bullied him after he reported another employee’s violation of lock-down procedure on a piece of equipment. The bullying became so bad that Gervais had to transfer to the Mildred Lake facility and take a lower-paid position. However, the two co-workers later transferred to Mildred Lake and the harassment continued, said Gervais.
Gervais also had other issues with Finning, including conflict relating to certain rules he felt were “stupid” and the amount of waste he perceived at Finning.
Finning argued Gervais should not be reinstated, as the employment relationship was too damaged. It pointed to his displeasure with the company, his taking of Finning materials, his failure to report for his two shifts following the incident, and his failure to clearly explain why he left early and went home. It also noted that there were uses for damaged tire slings and the company often broke them down to use in other things, though that particular one had been sitting around for a while.
The court found the real issue was that Gervais made a mistake in removing the tire sling from the facility without proper authorization — a signed MOG form. This made it not about theft but more about a breach of policy, said the court. It went to say that because of this, there was no real evidence Gervais couldn’t be trusted by co-workers and managers in his job.
The court also noted Gervais did not receive much support from Finning for reporting a safety issue at the other facility and suffering harassment as a result. This contributed to his displeasure with the company, which was understandable and probably shouldn’t be held against him, said the court.
Ultimately, the court found Finning did not have “clear, convincing and cogent evidence” to show Gervais was guilty of theft of its property. There was no deception, as Gervais never tried to hide the fact that he took the tire sling. There was no evidence he took anything else, despite the two co-workers’ attempts to say otherwise. In fact, they had a vendetta against Gervais and he perceived their allegations “as another chapter in the continuing abuse” against him, which made him upset, said the court.
The court also found Finning’s investigation was fairly cursory, as it only interviewed Gervais and the manager he claimed to have approved his taking of the tire sling. He was also given no reason for his initial suspension or his termination at the time of either.
“I accept (Gervais’) explanation that he did think he had implicit authority to remove a condemned and discarded tire sling. Consequently he did not have the necessary mens rea or dishonest intent necessary to prove theft,” said the court. “He never denied taking the tire sling, and in fact volunteered that he had it and never tried to hide that he had it.”
Finning was ordered to reinstate Gervais with a one-day unpaid suspension serving as discipline for his misconduct.
For more information see:
• Finning International Inc. and IAMAW, Local 99 (Gervais), Re, 2013 CarswellAlta 1474 (Alta. Arb.).
