Arrested and charged with theft of company property, a railway worker was terminated for insubordination after he declined to answer questions during the company’s formal investigation.
The union grieved. The worker’s refusal to answer certain questions was not insubordination, the union said. The worker had been charged criminally and had been advised by union counsel not to answer questions in the circumstances. Dismissal was excessive and unwarranted, the union said.
F.T. had 30 years’ service with the railway company — including some time in management positions — when he was arrested and charged with theft and two counts of possession of stolen goods on November 13, 2009.
The circumstances that led to the criminal charge were also the subject of a report to management by the company’s internal police.
Subsequent to the arrest, F. T. was suspended pending a formal company investigation into the charges.
Terminated for alleged theft and insubordination
The company began a disciplinary investigation on December 9, 2009. However, F.T. declined to answer any questions and requested a postponement in order that he might consult his criminal lawyer. The request was denied and on December 17, 2009, F.T. was served notice that he was being terminated for the alleged theft and for insubordination.
While the company was justified in suspending F.T. pending the outcome of the criminal proceedings, the company had no evidence to sustain a conclusion that F.T. had engaged in any misconduct that would justify discipline, the Arbitrator said.
What the company did have was a telephone confession from another employee who took sole responsibility for the theft. However, that employee also managed to implicate F.T. in a backhanded manner, suggesting some scenario where F.T.’s attempts to re-secure the stolen property had been thwarted by threats from the persons in possession of the stolen property.
Skeptical about the value of the confession with regard to F.T. specifically, the Arbitrator also expressed concerns about the probative value of the confession in general.
Questionable confession
“While it is not for the Arbitrator to determine whether [the employee’s] confession was voluntary or not in accordance with the standards of criminal law, it is clear to me that the statements which he made were the result of suggestive questions put to him repeatedly by the investigating officers, including statements by them which suggested that his daughter and wife might be brought into the case as accessories. To put it bluntly … I can attach no significant credibility to his account of events, and most importantly for the purposes of this grievance, to his statements implicating [F.T.] in [the employee’s] admitted involvement with yet another, unidentified person in an attempt to steal a company generator.”
While the company had no evidence against F.T. when it began its investigation, it was justified in suspending him while the criminal charges were pending. However, once the Crown declined to proceed with any charges there was “no basis on the evidence before me to sustain a responsible conclusion grounded in evidence that [F.T.] was involved in a conspiracy to steal Company property or to be in possession of stolen property as alleged.”
The Arbitrator allowed the grievance and ordered that F.T. be reinstated with compensation for all wages and benefits lost.
“[F.T.] is an employee of thirty years of service who has, it appears, been disciplined on only two occasions in all of that time. There is no suggestion of dishonesty or serious misconduct anywhere in his record, and indeed in the past he has, on occasion, been promoted to the ranks of management. [F]or the reasons stated above, the document which came into the Company’s possession following his discharge, the purported confession of [the other employee] … is one to which the Arbitrator can assign no meaningful credibility.”
