Following an investigation into allegations that he stole two cans of gas and had removed a set of emergency lights from the employer’s warehouse without authorization, a worker with 20 years’ service was disciplined for theft.
Ordered to take a day off to think about whether or not he was prepared to follow employer rules and policies in the future and to make restitution for the missing gasoline, the worker grieved.
The worker claimed he had been disciplined without cause. He asked that the disciplinary letter be removed from his file and that he be reimbursed for the cost of the 54 litres of gasoline that had been charged to him.
Employed by a provincial transport ministry for about 20 years, T.S. approached his supervisor in the spring of 2008 and asked if he could have a set of automatic safety lights from the warehouse. The supervisor greeted the request with skepticism and told T.S. to wait until the end of the season when it was possible that some obsolete lights might be disposed of.
Lights missing
Some weeks later, when seeking to deploy the safety lights, the supervisor was unable to locate them in the warehouse. While the box that contained the lights was there, the lights themselves were missing. After making inquiries with a number of employees as to the whereabouts of the lights, the supervisor finally approached T.S. When the supervisor told T.S. that he needed the lights, T.S. responded, “[Boss], you promised me a light.”
The next day the lights were back in the warehouse.
During the course of a subsequent investigation into the circumstances surrounding the disappearance of the lights, a co-worker of T.S. reported seeing him at the government pumps loading two cans of gas into the back of his work truck. Records indicated that T.S. pumped a total of about 54 litres over the course of two visits to the pumps late in the afternoon of May 26, 2008.
Asked about the lights, T.S. told the investigator that he had denied taking them when interviewed by his supervisor and that he was offended by the accusation that he had. However, he conceded to the investigator that it did not look good. T.S. did not deny taking gas but said that the gas was intended to fuel a power washer for washing his vehicle. He then told the investigator that he did not know where the gas cans were presently located.
Informed of the discipline, T.S. offered no denials or admissions.
Ruling that T.S. had failed to rebut the employer’s prima facie case against him, the Arbitrator dismissed his grievance.
Fudged answer
While no one had seen T.S. either remove the lights from the warehouse or return them, T.S. was unable to issue an unequivocal denial that he had taken the lights. Instead, the Arbitrator said, T.S. had “fudged” his answer and hung his head while saying he had been “promised” a light. He offered no denial then or later when the opportunity arose.
The evidence with respect to the alleged theft of the gas was stronger, the Arbitrator said. There was a witness to T.S. taking the gas and, the amount of gas taken was excessive given the three-litre capacity of the gas tank on the power washer. Moreover, T.S. had no authorization either for the gas or for the power washer.
While the evidence against T.S. was sufficient to establish his guilt on a balance of probabilities, the Arbitrator chose not to view T.S.’s reticence unfavourably. “It is noted that although [T.S] testified that he had not done any of the actions alleged by the Employer, he was not seen as someone who wanted to bring forward strong factual information to rebut the allegations being made against him. It appeared that [T.S.] had some hesitation in making statements that were not clearly correct. This, of course, can be seen as a positive reflection of an underlying integrity which makes it difficult for the witness to not tell the truth.”
While the employer did have just cause to discipline T.S., the award did not constitute a finding of criminal conduct. In view of the employer’s desire to retain T.S. the Arbitrator said, “It is hoped that this award will allow this matter to be brought to a close and for the Grievor and the Employer to work together in rebuilding their employment relationship.”
