Amalgamated Transit Union - Local 1587 v. The Crown in Right of Ontario (Metrolinx - GO Transit), 2013 CanLII 84310

Grievance Settlement Board

GSB#2012-0175, 2012-0176 UNION#6-07-12 BFM, 6-08-12 BFM

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union - Local 1587 (Biggar)

Union

• and -

The Crown in Right of Ontario (Metrolinx - GO Transit)

Employer

BEFORE

Richard Brown Vice-Chair

FOR THE UNION

Katherine Rowen Ursel Phillips Fellows Hopkinson LLP Counsel

FOR THE EMPLOYER

Daniel Fogel Hicks Morley Hamilton Stewart Storie LLP Counsel

HEARING

March 21, April 3, May 24 and Sept 16, 2013

DECISION

1Thomas Biggar worked as a coach technician at the Metrolinx garage on Mississauga Road in Streetsville. He was terminated for taking 4 litres of windshield washer fluid, worth about $2.25, from the garage for his personal use, allegedly after being told by his supervisor not to take the fluid. The relevant part of the termination letter is dated February 10, 2012 and states:

[T]his letter will serve to confirm that your employment with Metrolinx is terminated effective today, for cause, as a result of your inappropriate workplace behavior which includes but is not limited to theft and insubordination.

The unauthorized removal of Metrolinx’s property is against company policy. Your behavior is unacceptable in this organization and under any circumstances.

In making this decision we have taken into account you length of service, which commenced on February 2, 2009, as well as your overall disciplinary record …

I

2The incident leading to Mr. Biggar’s termination occurred on January 29, 2012. The grievor normally worked from 3:00 p.m. to 1:00 a.m. but he had received permission to start early that day and to leave at 11:00 p.m. Upon leaving work, he faced a drive of 109 kilometres to his home in New Lowell, northwest of Alliston, and he had an appointment early the next day with a marriage counsellor. His wife had moved out of the family home, taking their seven-year-old daughter with her. The grievor testified he was not sleeping well and was not very focused mentally as a result of the separation.

3Some elements of what occurred on January 29 are not disputed. Before the end of his shift Mr. Biggar changed into his street clothes and retrieved his car from the employee parking lot. A video recording from a security camera shows him driving into an area reserved for bus traffic at 10:48. The grievor parked his car adjacent to a pedestrian door to the garage. Another camera recorded what transpired there. He took a partial jug of washer fluid from his trunk, opened the hood and spent approximately twelve seconds emptying the contents of the jug into the car’s fluid reservoir. Empty jug in hand, he then entered the garage and returned, a minute or two later, carrying the jug refilled with fluid. He spent approximately 14 seconds pouring some of this fluid into the car’s reservoir, before placing the jug and remaining fluid in his truck. As the time initially spent pouring the fluid from the jug in the trunk is only slightly less than the time later spent pouring fluid from the garage, I deduce the amount of fluid in the trunk was enough to fill almost one-half of the reservoir, assuming it was empty to start and full at the end as the grievor testified.

4While inside the garage refilling the jug, the grievor met his supervisor, Rome Singh. According to Mr. Singh’s testimony, he encountered the grievor at the bulk fluid tank while he was in the process of filling the jug. When the grievor later testified, he said they met while he was on his way to the tank. I ruled this evidence inadmissible because it contradicted Mr. Singh’s account and had not been put to him in cross-examination. In any event, Mr. Biggar concedes he entered the garage without any intention of obtaining permission before taking a jug of fluid and that his encounter with Mr. Singh occurred by chance.

5During this encounter, the supervisor asked the grievor what he was doing. The grievor explained he was taking fluid because he needed it to get home. There is a dispute about what Mr. Singh said in reply. On the supervisor’s account, he told the grievor to put the fluid back. According to the grievor, Mr. Singh said: “OK but buy your own fluid next time.”

6Soon after this encounter, Mr. Singh saw the grievor exit the garage with a full jug of fluid. At 11:06 p.m. on January 29 the supervisor reported the incident in an email sent to Bob Cody, then superintendent for bus fleet maintenance:

At approximately 22:51 saw [Thomas Biggar] dressed in his casual clothing filling a jug of windshield washer fluid. He was between pits 20 & 21 and in full view of employees Richard, Keith, Salem and Paul. I asked what he was doing. He said he ran out of w/washer fluid. He was told to put it back and buy some from a nearby fuel station. I continued my perusal of the shop and getting an update from Kunal who was on sign ins in front of bays 22 & 23. Thomas walked away with the container of w/washer fluid despite being told not to take it.

7The tank from which the grievor filled his jug holds hundreds of litres of washer fluid. Mr. Singh conceded in cross-examination that he did not tell the grievor how to put the fluid back into the container, something that could not be easily accomplished. The supervisor testified he would have been satisfied if the grievor had simply left the full jug behind or poured its contents into a bus.

8Mr. Biggar was not scheduled to work on January 30 or 31. While on his days off, he was advised by a union official to offer to return the fluid. On February 1, Mr. Biggar called Mr. Singh at home and made this offer. Mr. Singh indicated the matter was now in the hands of his superiors. Mr. Biggar testified he had always intended to return four litres of fluid to the garage, at a later date, to replace what he took on January 29. He was asked in cross-examination why he had not returned the half jug of fluid which had he stowed in his trunk after refilling his reservoir. He replied there was no way to put the fluid back into the tank. Asked how he intended to return four litres later, he said it could have been poured into the reservoir of a bus.

9Mr. Singh testified the four employees mentioned in his email were within earshot when he spoke to the grievor on January 29. In an email to Mr. Cody, dated February 2, Mr. Singh reported one of these employees claimed to have recorded the disputed conversation on his cell phone. Mr. Biggar testified he saw no-one near the tank but he conceded two employees might have been in a bus nearby. None of the employees named by Mr. Singh were called as witnesses by either party.

10Mr. Cody met with the grievor on February 2 in the presence of a shop steward and another supervisor. Mr. Singh was not working that day and did not attend. According to Mr. Cody, the grievor claimed he went to his car at 10:55 p.m. on January 29. He recounted no fluid coming out when he tried to use his windshield washer to clear the windscreen of frost. He also said he had taken fluid from the garage because of the potential for bad weather. During this meeting, Mr. Biggar acknowledged he should have asked permission before taking the fluid, but he denied being told to put it back.

11Mr. Biggar testified he needed washer fluid on January 29 for safety, in case he had to clear road spray from his windshield. He also claims not to have known where to buy fluid near the garage late at night. He had not used service stations near the garage, instead buying diesel fuel and washer fluid for his car in bulk from suppliers near his home. He testified the closest station on his route home was in King City, a distance of approximately 33 kilometres from the garage. This station would have been open when the grievor passed it shortly after 11:00 p.m. on January 29, but he testified when leaving the garage he did not know it would be open. I note he would normally have passed that station two hours later on his trip home.

12As to the amount of fluid his car typically consumed, Mr. Biggar testified he could empty a full reservoir in two or three days in the winter. In other words, he typically used one-third to one-half of a reservoir of fluid on a one-way trip to work or home. However, the grievor did mention a single occasion when he encountered freezing fog and went through a whole reservoir just on the way home.

13Asked in cross-examination why the fluid initially in his truck on January 29, enough to almost half-fill the reservoir was not sufficient, the grievor replied he had thought it would not be enough to get as far as King City.

14In cross-examination, Mr. Biggar also conceded knowing there were gas stations in the vicinity of the garage, which is only a few kilometres from the intersection of Mississauga Road and Highway 401. He admitted having seen some stations while test driving buses or buying coffee in the area. He also conceded some of these stations were probably open twenty-four hours a day in such a high traffic area. Employer counsel then suggested to the grievor he was so concerned with convenience that he would rather take fluid from the employer than deviate from his normal route to buy it. The grievor replied: I don’t know that I agree with that.” I view this response as less than a total denial of the suggestion that he was motivated more by convenience than necessity.

15In preparation for the hearing, Mr. Cody visited five retailers within 2.5 kilometers of the Metrolinx garage, confirming they are open for twenty-four hours, every day of the week, and sell washer fluid.

16Six months before the washer-fluid incident, in late July of 2011, Mr. Biggar repaired his car in the employer’s garage. One of the brake lines was leaking and the grievor drove the car over a pit in the garage to crimp the line. Around the same time, another employee made an emergency repair to his vehicle in the garage. Having worked at Metrolinx for only a few weeks, Mr. Singh sought guidance about what to do in such circumstances. In an email to two senior managers dated August 1, he suggested repairing personal vehicles in the garage, even in emergency circumstances, was a violation of company policy. The emails he received in reply indicated employees could do emergency repairs so long they obtained permission first and were not paid for the time involved. All of these emails were entered in evidence. Based on the guidance received, Mr. Singh spoke to Mr. Biggar on August 1. The note of this conversation in the supervisor’s day timer states:

Discussed with Tom. Emphasis on seeking permission & outside working hours.

According to Mr. Singh, the grievor had not asked permission. When testifying, Mr. Biggar claimed to have obtained permission and denied being told he had done anything wrong. In my view, nothing turns on whether the grievor sought permission or was told he had done something wrong. The important point, for present purposes, is that he concedes permission is required, before repairing a personal vehicle in the garage, even in an emergency.

17In August or September of 2011, Mr. Biggar complained to Bob Cody about Rome Singh calling him by his last name. After Mr. Cody spoke to Mr. Singh, he ceased this practice. The grievor conceded in cross-examination that Mr. Singh might also have called other employees by their last name. A few months later the name issue was resolved, Mr. Singh burned five Johnny Cash CD’s for the grievor, having learned he was a Cash fan.

II

18I begin my analysis of the evidence by noting the grievor has been candid from the outset about having taken the fluid. In my view, he has been less than candid about other matters. His contention that he always intended to return four litres of fluid to the employer is not supported by the evidence. He did not make this offer during his encounter with Mr. Singh on January 29. The offer was made only after a union officer prodded the grievor to make it. I conclude he had no such intention on January 29.

19I also reject as not credible his contention that he needed to take fluid from the garage in order to drive safely, even as far as King City, let alone all the way home. The amount of fluid initially contained in the jug in his trunk was enough to fill his car’s reservoir almost to the half-way point. Based on the grievor’s own evidence about how much fluid he typically used, I conclude he already had two or three times the quantity of fluid required to get home, except in the highly unlikely circumstance of freezing fog. There is no evidence to suggest freezing fog was a real prospect on January 29. Moreover, the grievor knew some gas stations near the garage were probably open when he left work that day, yet he made no effort to find an open station before taking fluid from the garage. In these circumstances, I conclude his motive for taking the fluid was convenience and not necessity.

20The central dispute concerns what the grievor was told by his supervisor on January 2. In this regard, the employer urged me to draw an adverse inference from the union’s failure to call any of the employees who allegedly witnessed this exchange.

21I dealt with the drawing of adverse inferences in Liquor Control Board of Ontario and Ontario Liquor Control Board Employee’s Union, [2002] O.G.S.B.A. No. 15, where the employer argued such an inference should be drawn from the failure of the union to call as a witness one of the grievor’s co-workers:

Counsel for the union argued the employer's failure to call Mr. Pavlakovic as a witness should lead me to draw an "adverse inference" that his testimony would not assist management. In support of this argument, counsel relies upon the decision in Great Canadian Oil Sands Ltd. and McMurray Independent Oil Workers (1973), 1973 CanLII 2079 (AB GAA), 3 L.A.C. (2d) 245 (Sychuk) where an inference unfavourable to the union was drawn because the grievor did not testify.

The subject of adverse inferences is reviewed in Sopinka, Lederman and Bryant, The Law of Evidence in Canada (2nd ed.):

In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. Such a failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party's case, or at least would not support it. (page 297; emphasis added)

This recitation of the law of evidence supports the decision in Great Canadian Oil Sands. The grievor who did not testify in that case might be considered a party litigant. At the very least, he was a witness willing to assist the union or one over whom the union had exclusive control. In this case, Mr. Pavlakovic clearly is not a party litigant. As a member of the bargaining unit, he is not a witness who would be more willing to assist the employer than the union or one whom the employer controls to the exclusion of the union. Accordingly, I draw no adverse inference from the fact he did not testify.

22In my view, just as no adverse inference is to be drawn from an employer’s failure to call a bargaining-unit employee to testify, no such inference should be drawn from a union’s failure to call this sort of witness. As both an employee of the employer and someone represented by the union, such a person is not under the exclusive control of either party.

23The employer relied upon Versacold Group Warehouse and Teamsters Local 419, unreported decision date Nov. 20, 2009 (Surdykowski), drawing an adverse inference from the union’s failure to call a co-worker of the grievor’s, because that individual had recounted to a manager an account that supported the grievor’s version of a contested incident. In the case at hand, there is no evidence that any of the bargaining-unit members in question ever supported the grievor’s version of what his supervisor told him.

24If Mr. Singh is to be believed, the grievor was told to put the fluid back but took it anyway, seconds later and while his supervisor was still in the area. Union counsel argued, if the grievor had been told to put the fluid back, the supervisor would have tried to intervene, upon seeing him leaving the garage with a full jug in hand. As the monetary value of the fluid was small and Mr. Singh was a considerable distance from the grievor when he exited, I attach little significance to the fact no attempt was made to prevent the grievor from leaving with the fluid.

25Noting the union is not obliged to explain why Mr. Singh might be not be telling the truth, counsel suggested the email he wrote to Mr. Cody on January 29 could have been designed to cover his tracks, after he realized another employee had recorded him giving the grievor permission to take fluid in violation of company policy. Such a cover-up seems unlikely to me, because it would entail the supervisor writing a fraudulent email when faced with a recording that would reveal his fraud.

26I also note Mr. Singh’s account of what he said on January 29 is consistent with what happened in relation to the repair of personal vehicles during the preceding summer. The supervisor initially opposed such repairs being done in the garage even in emergency circumstances. He was later advised by senior managers that such repairs could be done with permission but only in an emergency. As there was no emergency on January 29, Mr. Singh telling the grievor to put the fluid back would have been consistent with what had transpired in relation to repairing personal vehicles.

27In short, there is little reason to disbelieve Mr. Singh’s account of what he said to the grievor. There is more reason to disbelieve Mr. Biggar’s version of what he was told, because he has been less than truthful about both this reason for taking the fluid and his intention to return it. Accordingly, on the balance of probabilities, I conclude the grievor was told by his supervisor to put the fluid back.

III

28The union relies on a number of cases holding the misappropriation of property did not amount to theft: Berto’s Restaurant and Hotel, Motel & Restaurant Employees Union (1989), 1989 CanLII 9303 (ON LA), 8 L.A.C. (4th) 87 (Dissanayake); Hoffman Meats Inc. and United Food and Commercial Workers Union (1991), 1991 CanLII 13445 (ON LA), 20 L.A.C. (4th) 348 (Samuels); Sobeys Inc. and United Food and Commercial Workers Union, [2001] O.L.A.A. No. 909 (Hinnegan); Waterloo Region District School Board and Ontario Secondary School Teachers’ Federation, [2007] O.L.A.A. No. 418 (Howe).

29In Berto’s Restaurant a waitress gave a glass of soda to a customer without charging for it. Noting the grievor derived no benefit from providing soda to a stranger and the menu priced soda only by the jug, Arbitrator Dissanayake concluded the waitress lacked the dishonest intention necessary to commit a theft.

30In the remaining three cases cited by the union, the arbitrator concluded the grievor had reasonably thought he was entitled to use or consume the property in question: two five-cent plastic bags used as shoe coverings to bicycle home in the rain in Hoffman Meats; a third of a roll of paper towel, taken from the employee washroom in full view of a supervisor, and used to clean oil from a leaking car engine in Sobeys; and ice cream bars consumed from a staff-room fridge in the Waterloo case.

31Mr. Biggar took the fluid for his own use and did benefit from it. Having been told by his supervisor to put the fluid back, the grievor knew he was not entitled to remove it from the garage. In these circumstances, I conclude he committed theft.

IV

32As demonstrated by the cases cited by counsel, not all arbitrators take the same approach when determining the appropriate penalty for theft. The competing schools of arbitral thought are reflected by two of these decisions. In Labatt Ontario Breweries and International Union of Operating Engineers, unreported decision dated January 16, 2001 (Surdykowski), the arbitrator wrote: “Except in extraordinary circumstances, discharge will be the appropriate penalty for theft.” This relatively rigid approach can be contrasted with the more contextual one adopted by in Canadian Broadcasting Corp. and Canadian Union of Public Employees (1979), 23 L.A.C. (2d) 27 (Arthurs). In the latter case, Professor Arthurs wrote:

The older cases generally (but not inevitably) treated theft or dishonesty as an offence which warranted automatic discharge; more recent cases, especially those decided by arbitrators subscribing to the theory of "corrective discipline", do not treat dishonesty as per se grounds for discharge; and various mitigating factors have been identified as justifying the substitution of a lesser penalty for discharge in such cases. Such factors include:

(1)

bona fide confusion or mistake by the grievor as to whether he was entitled to do the act complained of;

(2)

the grievor's inability, due to drunkenness or emotional problems, to appreciate the wrongfulness of his act;

(3)

the impulsive or non-premeditated nature of the act;

(4)

the relatively trivial nature of the harm done;

(5)

the frank acknowledgement of his misconduct by the grievor;

(6)

the existence of a sympathetic, personal motive for dishonesty, such as family need, rather than hardened criminality;

(7)

the past record of the grievor;

(8)

the grievor's future prospects for likely good behaviour; and

(9)

the economic impact of discharge in view of the grievor's age, personal circumstances, etc.

33Union counsel relies on four cases where a grievor, having been discharged for theft, was reinstated with a lesser penalty: Canada Post Corp. and Canadian Union of Postal Workers (1990), 1990 CanLII 12911 (CA LA), 15 L.A.C. (4th) 77 (Adell); B.C. Rail and Canadian Union of Transportation Employees, (1996), 1996 CanLII 20266 (BC LA), 56 L.A.C. (4th) 101 (Hope); Abitibi Consolidated Inc. and International Association of Machinists and Aerospace Workers, [2000] O.L.A.A. No. 81 (Brent): and Hackett, Division of Harsco Corp. and United Steelworkers of America, [2002] O.L.A.A. No. 409 (Snow),

34The grievor in Canada Post, with twenty-five years of seniority and no prior discipline, pilfered a cassette tape from undeliverable third-class mail. Destined for the dump, the cassette had no value to the employer.

35In BC. Rail the grievor took a can of gas out of necessity, to avoid being stranded 10 miles from home, late at night and in a remote location where no service stations were open at that hour.

36The other two cases cited by the union involved the misappropriation of property of little or no value in circumstances where the grievor failed to obtain permission but it would have been granted if it had been sought. In Abitibi Consolidated the grievor had almost thirty years of seniority and no prior record of discipline. He took scrap plywood home without a gate pass. The grievor in Hackett had over ten years of seniority and a clean record. He brewed and consumed coffee taken from a locked store room.

37In the instant case, the fluid had some a value, however small, to the employer. The grievor did not take it out of necessity. Nor did he take it in circumstances where permission would have been granted if sought. Rather it was taken in direct defiance of Mr. Singh’s direction to put it back. The incident in question occurred less than three years after Mr. Biggar commenced his employment with Metrolinx on February 2, 2009. Prior to the fluid incident, he had already been disciplined for misusing corporate funds. In November of 2010, he received a three-day suspension for using a safety-footwear voucher to obtain footwear for his wife. Moreover, the grievor has not accepted full responsibility for the theft of fluid; he has persisted in misrepresenting both his intention to return it and his reason for taking it; and he continues to falsely claim he had permission to take it.

38Union counsel contended the emotional turmoil arising from marital problems impaired the grievor’s judgement but the only evidence adduced to support this claim is his own testimony. There is no evidence his emotional state led him to seek any form or treatment or counselling. In my view, the union has not demonstrated that the grievor met the standard of being unable “to appreciate the wrongfulness of his act”, the standard enunciated by Professor Arthurs in Canadian Broadcasting Corp.

39Bearing in mind all of the factors reviewed above, I conclude discharge is the appropriate penalty, even applying the contextual approach adopted in Canadian Broadcasting Corp.

40I digress to note the grievor also received a second suspension of four days for using “inappropriate language” when speaking to a fellow employee. This second incident occurred on January 26, 2012, three days before the washer fluid was taken on January 29, but the suspension letter is dated February 2. As the four-day suspension was imposed after January 29, I have not treated it as part of the grievor’s record for the purpose of assessing the appropriate penalty in this case. The reason why the arbitral jurisprudence requires discipline to be progressive is to allow an employee an opportunity to learn from lesser discipline before a harsher penalty is levied. As the four-day suspension followed the theft, the grievor could not have learned anything from that suspension before the theft occurred.

41The grievance is dismissed.