The initial misconduct was not particularly great and, for a long-service employee, might not have resulted in termination. The grievor’s self-serving justification and adamant refusal to admit the real reason until the bitter end destroyed the employer’s trust.
A utility service representative for a gas company was fired for using the company credit card to gas up the family truck.
A certified gas fitter and air conditioning mechanic, J.B. worked out of a company truck performing customer service calls, conducting pipeline repairs, inspections and meter work. He was 50 years old and had been working for the company for 23 years when he was fired in April 2010.
On April 15, 2010, J.B. was observed by a fellow customer at Johnny’s Sunoco to fuel a pickup truck being driven by his daughter and then to fuel his company truck as part of the same transaction.
These observations were reported to the gas company. J.B.’s employer followed up on the tip off, referencing the license plate number, which the customer had supplied. The employer was also able to confirm the substance of the allegations by viewing videotape from the gas station.
J.B. received a call at 8:20 the next morning asking him to attend a meeting with management and his union steward.
Before attending the meeting, J.B. sought out the company administrative clerk responsible for petty cash and gave her $22.00. He explained to her that he had misplaced his wallet the day before and had used the company credit card to purchase gas.
Frantic wallet search
He elaborated on the same story at the investigative meeting. He was aware of the prohibition on using the company credit card for personal expenses, he said, but his daughter had called him in a panic. She needed to get to a job interview but there was not enough gas in the family pickup. He arranged to meet her at the gas station. Only as he was filling up did he realize that he could not find his wallet. At the meeting he pantomimed a frantic wallet search to demonstrate his dilemma at the gas pump.
However, the video from the gas station showed otherwise. At no point did J.B. appear to be searching for his wallet or indicate any distress.
There was another investigative meeting on April 23. J.B. stuck to his story.
On April 26 he was fired and the union grieved.
J.B. continued to stick to his story through the stages of the grievance procedure and funds were collected from the union membership on his behalf to support his family.
On the first day of the hearing, however, J.B. recanted. He claimed that the theft was related to financial pressures he was experiencing.
Egregious breach of trust
The union acknowledged that J.B.’s actions constituted an egregious breach of trust that struck at the heart of the employment relationship. Certainly a serious disciplinary response was warranted.
However, the union said, evolving case law shows that there are options other than termination in such cases. A balancing of interests that credits an employee’s rehabilitative potential against the employer’s need to exercise deterrence should be considered. In this case — because there was no general problem of theft at the company — the need for such deterrence was not so acute, the union said. Given J.B.’s 23 years’ seniority and the fact that he had acknowledged his mistake, a conditional reinstatement on a last chance basis could be substituted for the termination.
Many of its employees — J.B. included — work with minimal supervision, the employer said. It was necessarily dependent on the integrity of its employees. Aside from the admitted misconduct, J.B. had repeatedly attempted to mislead the company and in doing so had irreparably damaged the employment relationship.
The termination would stand, the Arbitrator said.
Certainly J.B.’s seniority and his largely favourable service record over the years would argue for a balancing of interests and conditional reinstatement if the issue was merely a one-time, fraudulent use of a company credit card, the Arbitrator said.
That wasn’t the case here. The employer expressly terminated J.B. for “fabricating and maintaining an ongoing dishonest explanation.”
Cover-up worse than the crime
“While, given the nature of his fraudulent act, it may be an overstatement to suggest in this case that the cover-up was worse than the crime; there is, however, no doubt that the nature of the grievor’s fabricated explanation, and his resolute adherence to that explanation, underscores the cogency of the Employer’s argument that the employment relationship was irreparably damaged,” the Arbitrator said.
More than that, the Arbitrator was skeptical of the motivations behind J.B.’s last-minute confession and expressions of contrition. “[J.B.’s] change of position, in my view, was more likely as a result of the inevitable conclusion that given evidence to the contrary the continued reliance on his fabricated explanation was futile.”
Even J.B.’s assertion that he was under financial pressure was dubious, the Arbitrator said. There was no compelling evidence to support the claim.
“The evidence as a whole suggests that the grievor simply took advantage of an opportunity to fraudulently obtain gas using the Employer’s credit card.”
The grievance was dismissed.
