FPSLREB Decisions
Decision Information
Termination (disciplinary) - Theft of employer's material - Reinstatement - the grievor, an Aircraft Structures Technician at an airport, was terminated for having allegedly used aluminium sheet and angle stock belonging to the employer in the making of a wheel chair ramp for use outside of and unrelated to the workplace - the employer based its conclusion on a supervisor's investigation in which the latter determined that some material used bore the same lot number as the material in the employer's inventory - the grievor maintained that he had brought the material from his home to his work place for assembly - at the adjudication hearing, the supervisor pieced together a "puzzle" from aluminium stock in an effort to show that the material used by the grievor was gathered at the expense of the employer - the employer also filed documentation regarding the purchase by the employer of material bearing a lot number found on one portion to the grievor's ramp - the grievor presented evidence questioning the accuracy of the employer's documentation - the adjudicator found the employer's evidence to be inconclusive and lacking - the grievor had maintained his innocence throughout and had left his partially completed ramp overnight at work with a note for all to see indicating that it was not aircraft material but his personal property - the adjudicator noted that the grievor's actions were not consistent with deceitful behaviour - the employer failed to meet the onus of establishing theft. Grievance allowed.
Decision Content
File: 166-2-27261 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN SHAWN FIELDS Grievor and TREASURY BOARD (Transport Canada)
Employer
Before: Marguerite-Marie Galipeau, Deputy Chairperson For the Grievor: Derek Dagger, Counsel, Public Service Alliance of Canada For the Employer: Larissa Easson, Counsel Heard at Ottawa, Ontario, September 16 and 17; December 17, 18 and 19, 1996.
Decision Page 1 DECISION This decision follows the hearing of a grievance referred to adjudication by Shawn Fields, formerly employed at Transport Canada as an Aircraft Structures Technician (EG-04) in the Aircraft Services workshop situated at Hangar 58, Service Road, at the Ottawa Airport.
Shawn Fields ("the grievor") grieves the termination of his employment on March 6, 1996. The reason for his discharge is set out as follows in a letter dated March 6, 1996 and signed by R.D. Armstrong, Director General, Aircraft Services: The Departmental Investigation into allegations that you have used Transport Canada property to make wheel chair ramps has been completed.
The results of the investigation, which I have carefully reviewed, revealed that you have, by means available to you in your position as Aircraft Structures Technician, obtained and used material owned by Transport Canada, namely aluminum sheet and angle stock, to make wheel chair ramps for use in your personal business enterprise.
I find that your actions represent an extremely serious breach of conduct, particularly considering your position of trust with the Department. Despite being provided the opportunity, you have offered no acceptable explanation on your own behalf and you have displayed no remorse.
In view of the foregoing, I consider that you have broken the bond of trust that is essential for your continued employment with the Public Service of Canada.
Consequently, I have no alternative but to discharge you from the Department of Transport and the Public Service of Canada, effective the end of the workday March 6, 1996, pursuant to the authority of the Treasury Board of Canada under section 11.2(f) of the Financial Administration Act which has been delegated to me under section 12 of the same Act.
Should you feel this decision is unwarranted, you may file a grievance at the final level of the grievance procedure.
At the hearing, witnesses were excluded. In their opening statement, both counsel stated that the issue to be resolved was: who owned the material used by the grievor to build a wheelchair ramp. According to counsel for the employer, the material was the property of Transport
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Decision Page 2 Canada. According to counsel for the grievor, the material was brought at his place of work by the grievor.
EVIDENCE Thirteen witnesses were heard. I will begin by summarizing the evidence of the grievor's supervisor, Peter Laverie, and then, that of the grievor. It is their testimony which bears most directly on the ownership of the material used by the grievor to build a wheelchair ramp.
Peter Laverie, Acting Chief Technician, Aircraft Services, is the grievor's supervisor.
On January 25, 1996, two pieces (Exhibits E-20, E-21) of a wheelchair ramp leaning against a wall in the bonded stores area of the workshop were brought to his attention. These pieces were made of flat-stock and pieces of angle. There were no rivets on the angle. There was a marking on one of the pieces which read: "contact S. Fields: do not use: non aircraft material". On January 26, Peter Laverie took pictures (Exhibits E-4 to E-8) of what he found.
There was a lot number on one of the two pieces of angle (# 1057971EO) (Exhibits E-3 and E-4). Both parties agree that the lot number (which has since been removed) appeared on the angle which is part of the ramp. The lot number is put on angle by the factory that produces this material. According to Peter Laverie, the same lot number appeared on angle in the possession of Aircraft Services. In addition, the angle (1 1/2 inch by 1 1/2 inch) which the grievor used to build the ramp appeared to Peter Laverie to be the same type of angle as the angle found in the workshop in that it had a similar sheen or shine to it.
Peter Laverie went around the workshop, collected pieces of metal which, in his opinion, could have been part of the same sheet of metal (aluminum) as the metal used by the grievor to construct the ramp (Exhibits E-20, E-21). Some pieces (Exhibits E-22 to E-26) could be fitted together as part of a puzzle to which could be added the pieces of the wheelchair ramp (Exhibits E-20, E-21). Pieces of metal (Exhibits E-22 to E-27) gathered by Peter Laverie from the workshop as well as the ramp (Exhibits E-20, E-21) built by the grievor were produced at the hearing. A puzzle
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Decision Page 3 was constructed by Peter Laverie at the hearing and a diagram (Exhibit E-14) reflecting this puzzle is also part of the evidence as well as two pictures (Exhibits E-18, E-19) of the puzzle.
Peter Laverie observed that the flat stock used to build the ramp had a thickness of .185. The flat stock (slightly bent) used to build the ramp was 8 inches wide by 78 inches long. Peter Laverie found two pieces of .185 flat stock under the hydraulic sheer. This flat stock was 2 inches wide by 95 15/16 inches long (Exhibits E-22, E-23).
Peter Laverie also found a large piece of sheet metal (Exhibit E-24) (28 inches wide by 95 15/16 inches long and .l85 thickness) in the bonded stores area. The thickness (.185) of the metal was not common and it bore a number (DO 306).
Peter Laverie set the two pieces of ramp (Exhibits E-20, E-21) side by side. Then, he set the two long narrow pieces (Exhibits E-22, E-23, 2 inches by 95 15/16) and the large piece (28 inches X 95 15/16, Exhibit E-24) next to them. Obviously, the ramps were shorter. However, Peter Laverie found in the workshop a small piece (8 inches by 17 3/4 inches, Exhibit E-25) which, if added at the end of one of the pieces of the ramp could produce a total length of 95 3/4 inches, that is, 78 inches (length of ramp) plus 17 3/4 inches (length of small piece, Exhibit E-25). Another small piece of metal would have been necessary to complete the length of one of the pieces of the ramp, but such was never found.
A complete sheet of metal (i.e. as sold, in a 4 feet by 12 feet sheet) could not be re-constructed.
Between the time Peter Laverie found the larger piece (Exhibit E-24) and the time of the hearing, this big piece remained available for use and the workers used part of it. The week following the construction of this puzzle, the grievor himself cut off a section (Exhibit E-26) of the big piece at the request of the upholstery section.
The flat stock used to build the ramp and the flat stock found by Peter Laverie in the workshop is known as 6061. The big piece (Exhibit E-24) of flat stock bore a traceability number, a DO number, DO 306. There was no traceability number on the grievor's ramp.
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Decision Page 4 According to Peter Laverie, the two pieces (2 inches by 95 15/16) (Exhibits E-22, E-23) which he found under the cutting sheer were identified by the grievor as being pieces which he cut from the material he used to build his ramp. As will be seen, the grievor denies this.
Peter Laverie believes that the large piece of sheet metal (28 inches wide by 95 15/16 long) (Exhibit E-24) which he found in the bonded stores area was part of the same sheet from which the flat stock in the ramp was cut (8 by 78 inches). As already mentioned, it bore the "D" number DO 306.
By adding the width of the ramp, that of the long pieces (Exhibits E-22, E-23) (2 x 95 15/16) and the large piece of sheet (Exhibit E-24) (28 x 95 15/16), there resulted a width of 48 inches which is the standard width of a sheet i.e. 4 feet.
Based on these observations, Peter Laverie (and his superiors) concluded that the grievor had used the department's material to build his wheelchair ramp.
Peter Laverie took pictures (Exhibits E-4 to E-8 and E--6 to E-19) of the ramp and of the puzzle which he constructed.
The rest of Peter Laverie's testimony can be summarized as follows. There are 10 to 11 sheet metal workers in the workshop. Peter Laverie and the grievor have been colleagues for nine years. They were both competitors for the position of Chief Technician. This competition has been "placed on hold" pending the result of this adjudication.
The regular working hours of the sheet metal workers are 7:30 a.m. to 3:30 p.m. There is one night shift from 2:30 p.m. to 10:30 p.m. The structural technician who works nights also works on Saturday and Sunday. The grievor has worked on night shifts. As part of his duties, the grievor was given the responsibility of ensuring that the necessary stock be available in the sheet metal room. If material was missing, it was his responsibility to order it.
To do their work, the technicians are supposed to use a "receiving report" number or "traceability" number. Since the technicians use metal to service aircraft, the metal has to be traceable. All material in the workshop's bonded stores is, in
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Decision Page 5 theory, intended for aircraft use. The "traceability" number is referred to as the "D" number.
Technicians sometimes use the department's equipment to do work on personal projects. These projects are referred to as "homers". For instance, a technician might make a clip at work for a child's bicycle. He might use aircraft services material. This material would be "scrap" found in the "scrap" bin. Peter Laverie would not "have a problem" if he saw someone taking a piece of metal from the "scrap" bin. It's one of the perks of the job and it's been like this for the 23 years during which he has been employed at the department. However, if the metal is still serviceable for aircraft, it shouldn't be used for a "homer".
Pilots and employees have been using material from the scrap bin. Up until the incident involving the grievor, this was a practice.
On January 26, 1996, Peter Laverie discussed his findings with his own supervisor, Dave Mayoh. The latter told him that if the grievor admitted having used the department's material, he would have to pay back the material and a letter of reprimand would go on his file.
However, the grievor made no such admission. He denied having used aircraft services material and said that on the following Monday he would provide a receipt to establish that he had purchased the material.
Peter Laverie told him that he could not take the ramp out of the workshop but he allowed him to rivet the ramp.
In spite of his instructions, the grievor took the ramp at home. On January 31, 1996, the grievor gave a receipt (Exhibit E-11) to Peter Laverie. It pertained to a different material than that which was used on the ramp.
The grievor brought back the ramp. The lot number of the angle was still visible.
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Decision Page 6 At the hearing, Peter Laverie produced a purchase order (Exhibit E-12) which was found by his secretary and pertained, according to him, to angle owned by the employer, bearing the lot number 1057971EO and having the "D" number DO 102.
According to Peter Laverie, the ramp built by the grievor is worth $450.00 approximately.
In cross-examination, Peter Laverie stated that he did not know the quantity of angle bearing the same lot number which might be produced by a factory. He is not familiar with the numbering system of the company that produces the angle.
He acknowledged that it is only the "D" number (i.e. the receiving report number or traceability number) written on the material that allows the conclusion that a certain piece of material is the department's property. There was no "D" number on the ramp.
According to Peter Laverie, the grievor insisted that he had used his own material. He said that it was a coincidence that the lot number on the angle was the same as the lot number on angle owned by the department.
Peter Laverie vaguely recollected that the grievor had told him that he was making ramps. The grievor had shown him a brochure (Exhibit E-3) advertising the ramps.
Peter Laverie acknowledged having made "homers" himself in the past. I will now summarize the evidence of the grievor. Approximately five years prior to the incident that led to the termination of his employment, the grievor started to build wheelchair ramps.
He built the first ramp using some of the department's material with the approval of his then supervisor, Glen Bigney and with the help of a co-worker, Ross Viau, who painted the ramp once it was assembled.
The other ramps were built with his own material which, over the years, he has purchased or collected. To date, he has built eight ramps. He does this as a hobby. Although he has had a brochure (Exhibit E-3) made at the suggestion of an
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Decision Page 7 acquaintance who is a dealer, this activity is not a business and he does not make any profit from the sale of these ramps.
His explanations as to the ramp (Exhibits E-20, E-21) at issue in this case are as follows.
He took the material from his own garage. He uses aircraft quality aluminum to build the ramps. He may have bought the flat stock and angle he used to build the ramp from stores such as Loucon Inc. or Russell Inc. or Ideal Inc. or Cohen & Cohen Inc. or from companies where he worked prior to starting his employment at Transport Canada eight years ago, such as, G. Fields Air Services Inc. and Enotech Aviation Inc. Over the years, he has accumulated material at home. He describes himself as a "pack rat". He only keeps receipts until a particular job is completed.
The receipt (Exhibit E-11) from Loucon Metal Ltd. which he remitted to Peter Laverie is the only receipt he could find. He thinks the receipt reflects the conversation he had with the clerk over the phone, sometime in October 1995. According to him, this receipt (Exhibit E-11) does not reflect the material he picked up at the store following the conversation. He is not even sure it reflects the transaction that actually took place. He doesn't have any other receipt since he doesn't keep receipts. He brought in the receipt to prove that, at the very least, he does buy material of the type which is on the ramp. Unfortunately, even this receipt does not establish that, because, in the end, it is T-6 aluminum which he picked up and not T-5 aluminum as written on the receipt.
On the night of January 24, 1995 he took four separate pieces of flat stock and four separate pieces of angle from his personal stock at home, wrapped them up and brought them to work. He planned to bend the flat stock. The security guard held the door for him when he came in to work, and the grievor is sure that the video camera recorded this. Unfortunately (both parties agree), the video tape is not clear. The grievor worked that night on two sets of ramps. The flat stock was 82-83 inches in length. He cut it to 78 1/4 inches. He bent it, drilled holes in it, temporarily assembled it and put it back in the store room with a note which read "do not touch: not aircraft material: contact S. Fields". It took him about 15 minutes to do this work.
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Decision Page 8 The next day, Peter Laverie told him that he found it suspicious that the lot number on the angle for his ramp was the same as the lot number on angle in the possession of the employer. He showed him a piece of the employer's angle.
The grievor's observations with regard to the puzzle constructed by Peter Laverie are as follows.
The flat stock (Exhibit E-24) used by Peter Laverie to construct the puzzle is 6061 and so is the flat stock used by the grievor to build the ramp but this does not mean that both pieces of flat stock came from the same sheet of 6061. The "D" number i.e. DO 306 found on the large piece of flat stock (Exhibit E-24) permits the tracing of the material to the department's receiving report but without the lot number, it is impossible to tell if both pieces come from the same lot. There could be 144 sheets of 6061 (12' by 4') in one lot, each sheet bearing the same lot number. There is no lot number on the grievor's flat stock (Exhibits E-20, E-21) or on the flat stock (Exhibit E-24) used by Peter Laverie to construct the puzzle.
There is no evidence that the flat stock used by the grievor comes from the same lot as the flat stock used by Peter Laverie to construct the puzzle.
As for the angle, the grievor points out that there was a lot number on it and that he ensured that it was written down and recorded by Peter Laverie because he knew that he would complete the ramp having received Peter Laverie's permission to do so. The lot number was 1057971EO.
The grievor pointed to deficiencies in the employer’s documentary evidence with regard to the angle bearing the lot number 1057971EO. The grievor produced a copy of the purchase order (Exhibit G-3) without the handwritten notations "Angle DO 102 Lot 1057971EO" which can be found on the employer's copy (Exhibit E-12) of the purchase order and he also produced the bill of lading (Exhibit G-4) and the certificate of analysis (Exhibit G-5) issued by the manufacturer. According to these documents, the lot number or "heat number" of the angle ordered by the department (Exhibit G-3, item 3) is 95-013-03. It follows that the handwritten lot number "1057971EO" written by someone on the copy of the purchase order (Exhibit E-12) does not correspond to the lot number of the material which through this purchase order was purchased by the employer.
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Decision Page 9 In addition, the grievor pointed out that even if the employer had in its possession angle bearing the same lot number as the lot number on his own angle, this would not be unusual. He explained that three suppliers of angles such as Loucon Inc., Ideal Inc. or Russell Inc. can buy angle from the same manufacturer and hence, several purchasers may have in their possession angle coming from the same lot and consequently, bearing the same lot number. In any case, he was steadfast that the angle which he used to build the ramp was his.
The grievor gave a demonstration to show that he could not by himself have lifted and cut off two pieces of flat stock (8" by 78") from a 4' x 12' sheet (Exhibit G-1, (4) (5)) nor a smaller sheet of 95 15/16 feet in length and he stated that it would have been dangerous to do so. He acknowledged that he could have lifted a piece of 6 feet (Exhibit E-24) in length.
The grievor also pointed out that there were no identifying features on the pieces (Exhibits E-22, E-23, E-25, E-26) used by Peter Laverie to construct the puzzle. He acknowledged that the "5" or "6" and "O" on Exhibit E-26 could be from the DO number DO 306 such as that found on Exhibit E-24.
He denied having cut the two long pieces (Exhibits E-22, E-23) and explained that he cut off the pieces of flat stock which he brought in, about two or three inches.
The grievor admits that having been told to leave the ramp at work, he should have obeyed. He brought it home because he didn't realize how seriously the incident was viewed by Peter Laverie. Also, because it was his material, he felt comfortable bringing it back home.
At the meetings held in relation to this incident, the grievor insisted that the material was his but that he couldn't say precisely where it came from because he had been collecting material for many years.
Under cross-examination, the grievor denied having meant that he had cut off the two long pieces (Exhibits E-22, E-23) when pointing to material behind the sheers. He explained that he was pointing to the material behind the sheers which he had cut off (of a width of approximately three inches) and in addition, he doesn't recall having seen the two long pieces (Exhibits E-22, E-23) behind the sheers. Even if those
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Decision Page 10 two pieces (Exhibits E-22, E-23) were there, he had no reason to think that it was at these pieces that Peter Laverie was pointing.
In one of the meetings, the grievor explained that he got his material from many places including DND. He remembers that in the fall of 1995, his colleague, Sabourin, brought back material from DND. It had no traceability number on it. Glen Bigney had said to get rid of it. The grievor helped his co-worker bring the material to the bin and he took a length of the stock home. He thinks it is possible that some of the material on his ramp could be part of that material.
Three witnesses were produced in an attempt to clarify the documents E-12, G-2, G-3, G-4 and to establish their probative value with regard to angle purchased by the department.
The testimony of Brian Rodger can be summarized as follows. He is a marketing representative at Ideal Metal Inc. According to him, one of the factories from which Ideal Metal Inc. obtains its material is Reynolds Extrusion Company (Exhibit G-5). Because of the legal obligation of insuring the traceability of metal to be used on aircraft and the ensuing obligations for Transport Canada, Ideal Metal Inc. tries to ensure as part of its quality control, the traceability of the metal it sells.
According to Brian Rodger, the documents (Exhibits G-3, G-4 and G-5) produced by the grievor are the purchase order, the bill of lading and the certificate of analysis pertaining to metal sold by Ideal Metal Inc. to Transport Canada. Part of this metal was 2" x 2" x 1/8" x 20' Aluminum Angle Alloy 6061, F6 (and not tubing) (Exhibit G-3 and G-4). The lot number of this angle was 95-013-03 (Exhibit G-4, item 3). The lot number was given by the manufacturer Reynolds Extrusion Company. According to the records of Ideal Metal Inc., Transport Canada did not purchase any other angle from Ideal Metal Inc. Exhibits G-3, G-4, G-5 are the only records that Brian Rodger could find, as far back as 1992.
When shown a sample of angle (Exhibit E-27), Brian Rodger noted that there was a "D" number on it, DO 102, that the specification ASTMB21 QQA200-8-F, simply referred to the type of angle and that the lot number 1057971EO did not correspond
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Decision Page 11 to the lot number on Exhibits G-3, G-4 and G-5. He also noted that the manufacturer's name was EXAL and not Reynolds Extrusion Company.
Brian Rodger stated that it was possible that Ideal Metal Inc. sold angle manufactured by EXAL and coming from the lot 1057971EO but he added that there were no records at Ideal Metal Inc. that such angle had been sold to Transport Canada.
Brian Rodger also pointed out that a mill makes angle in one run, gives it one lot number and sells it to different suppliers. For instance, Reynolds Extrusion Company produces a minimum of 1100 pounds of angle in one run or lot.
According to Brian Rodger, it is highly unlikely that the sample E-27 could have been delivered to Transport Canada with Exhibits G-3, G-4 and G-5 attached to it as those documents do not pertain to Exhibit E-27.
Brian Rodger could not explain that the bar code 61358496 of the common carrier Daily Group used by Ideal Metal Inc. to deliver the metal in Exhibits G-3, G-4 and G-5 can also be found on the sample Exhibit E-27. He stated that his knowledge of shipping was minimal.
The testimony of the Operations Manager Denis Chennette at Daily Group Inc. can be summarized as follows.
According to a delivery copy (Exhibit E-31) in the possession of Daily Group, Daily Group delivered for Ideal Metal Inc. 177 pounds of pipe products to Transport Canada on the 4th of December 1995. The copy bears the bar code 61358496.
Denis Chennette explained that Daily Group puts a sticker bearing the bar code on the bill of lading and three other stickers on the actual freight. The bar code is only used for one shipment.
The testimony of Neil Wright can be summarized as follows. He has been Warehouse Manager at Aircraft Services for the past eight years. Prior to that, he was office manager in the procurement and inventory, central section. He is familiar with the paperwork involved in the purchasing and receipt of metal.
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Decision Page 12 When goods are received, the storeman verifies the packing slip, the bill of lading and the purchase order. He assigns a receiving report number or "D" number to the purchased merchandise by transcribing it on the purchase order or the packing slip or both. He also puts a line through the purchase order.
He approved the purchase order in Exhibit E-12. He recognizes his signature. The purchase order was given a number T8514 32D and was filed in the outstanding receiving file in the receiving area. Exhibit G-3 is another copy of the purchase order and, in his opinion, was probably filed in the procurement section. He doesn't know who handwrote "Angle DO 102 Lot 1057971EO" on Exhibit E-12. The storeman John Sullivan appears to have received the goods listed in the purchase order (Exhibit G-3 or E-12) and the bill of lading (Exhibit G-4). He thinks the record of incoming shipments (Exhibit E-30) tends to confirm this conclusion. A freight bill of lading is missing.
When goods arrive, the receiver does not check the lot number on the metal. Simply, he ensures that the certification paper corresponds to the items on the packing slip. He doesn't think that the receiving inspector looks at the lot number either. The lot numbers are not recorded.
He doesn't know why someone wrote "Lot 1057971EO" on Exhibit E-12. It is not something that would be put there ordinarily.
As for the common carrier's bar code, he confirms that a sticker bearing the bar code is placed on the bill of lading, the packing slip, the shipment and on another copy which the carrier keeps. He cannot explain why the bar code appearing on the bill of lading (Exhibit G-4) is also found on the angle (Exhibit E-27) bearing the lot number 1057971EO.
The evidence of the commissionaire Joseph Edouard Mireault who was on duty on January 24, 1996 when the grievor arrived at work, can be summarized as follows.
He saw the grievor come in to work. The grievor said: "during my break time, I'll bring in some stuff to cut it". That is what he did. It was dark. Mr. Mireault saw the grievor bring in three flat pieces of metal with these approximate measurements 87" x 8', 1' square and 7" x 1'. He cannot say if it was the same type of metal as can
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Decision Page 13 be found in the ramp (Exhibits E-20, E-21). It is possible that he may also have been carrying angle on the inside. It was just a fleeting moment.
Farrell Levasseur was Director of Technical Services before he retired in 1996. His evidence can be summarized as follows.
In his position as Director of Technical Services, he reported to the Director General, Ron Armstrong. The Chiefs of Maintenance, Planning, Inspection and Supply reported to him. He has worked 38 years in Aircraft Services.
On the subject of "homers", this witness confirmed their existence and the fact that the practice was allowed. He stated that usually, they consisted of work of a minor nature. "Scrap" could be used to do these "homers". He has worked on "homers" himself.
On the subject of "traceability", the witness repeated what has already been summarized as part of other witnesses' evidence.
He was informed by Peter Laverie and Dave Mayoh about the ramp which the grievor had made at work. He informed the Director General of the ramp built by the grievor. He was present at one of the meetings held with the grievor. The meeting took place February 7, 1995. He assisted Peter Laverie in constructing a puzzle with the ramp and other pieces of metal found at work. He described the assemblage of these pieces. He took photographs (Exhibits E-16 to E-19).
According to this witness, the only feature on a piece of metal that can link this metal to the department is the "D" number. He can't explain the holes in Exhibit E-23 and recognizes that they don't match holes in the grievor's ramp.
Throughout this whole affair, the grievor was steadfast that the material in the ramp (Exhibits E-20, E-21) was his. Farrell Levasseur explains the fact that the puzzle is not quite a perfect fit by the fact that the metal in the ramp had to be bent.
The Manager of the Hangar Services, David Mayoh, also testified. His evidence confirmed the evidence of other witnesses already summarized, that is, "homers" were allowed, and "scrap" could be used to do these "homers". This witness also testified that the grievor was steadfast that the material was his own.
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Decision Page 14 Glen Bigney was shop supervisor at the time he retired. He had been employed as an Aircraft Structures Technician since 1972. This witness repeated what had already been said by other witnesses, that is, "homers" were allowed and "scrap" could be used. He doesn't recall anyone doing "homers" during working hours. He characterizes the grievor as a good worker who did "lots of work". He doesn't recall the grievor telling him, three years ago, that he was building a wheelchair ramp for his neighbor's child.
David Sabourin occupies a position of Structures Technician in the main workshop. He was one of the grievor's co-workers. He recalls having gone to the Department of National Defence one or two years ago with Glen Bigney to examine some available material. He does not recall having brought back sheet stock. He may have taken smaller pieces of angle. He did not keep an inventory of this material. There was no traceability number on this material. In the past, he has done "homers" at work. He used "scrap" material. Although it is not appropriate, sometimes, not often, it may have happened that metal with a traceability number might have been used to do "homers". This witness produced a series (Exhibit G-1) of pictures of the workshop.
Ross Viau is the supervisor of the paint and upholstery shops. According to his testimony, sometime before December 1995, the locks of the upholstery shop were changed and a stricter control was set in place to limit the number of persons having in their possession the keys to this shop. This was done because recently material (tools, pliers, scissors, needles) had been found lying around and webbing had disappeared. There were many persons in possession of master keys to the upholstery shop.
Leslie Thompson, who is workshop assistant to Peter Laverie testified that one night in late November 1995, the grievor came in to work and told her that he had a key to the upholstery shop and was on his way there where he intended to do some sewing. She told this to Ross Viau the next day. Sometime later, she learned that locks to the upholstery shop were changed.
Finally, the testimony of Ron D. Armstrong, Director General, Aircraft Services, can be summarized as follows.
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Decision Page 15 Ron Armstrong signed the termination letter. Prior to terminating the grievor's employment, he considered the evidence as well as the grievor's explanations. He didn't find the grievor's explanations convincing and he found the coincidences compelling, more particularly, the construction of the puzzle by Peter Laverie and the "stock" number on one of the pieces of metal. He offered to the grievor the possibility of resigning but the latter declined the offer and maintained his innocence.
ARGUMENTS The argument presented by counsel for the employer can be summarized as follows.
The burden of proof rests with the employer. The case is to be made on a simple preponderance of evidence. The present case is based on circumstantial evidence as no one saw the grievor taking material from the storeroom. There is a set of coincidences which are all consistent with each other. The evidence as collected and assembled by Peter Laverie supports the conclusion that the grievor used the employer's material to build his ramp. The penalty of discharge is reasonable. The case law is in favour of discharge when there is theft and in particular when there is continued assertion of honesty tantamount to dishonesty during the investigation.
This case has been a divisive issue in the workplace and it would be difficult for other employees to work with the grievor. Therefore, if it is found in favor of the grievor, damages instead of reinstatement should be awarded.
Even counsel for the grievor agreed that if it was established that the grievor took the material, discharge was warranted. The following cases were relied upon: Stéphane Laparé and The Staff of the Non-Public Funds, Canadian Forces (Board file 166-18-22492), Robert Lutes and Treasury Board (Board file 166-2-26706), Nathalie Mercier and Treasury Board (Board file 166-2-21350), Philip Zakoor and Treasury Board (Board file 166-2-25882), Nicolas Di Vito and Alastair Mathers, plaintiffs and MacDonald Dettwiler & Associates Ltd. [1996] B.C.J. No. 1436, Vancouver Registry No. C944198.
The argument presented by counsel for the grievor can be summarized as follows.
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Decision Page 16 The burden of proof which rests on the employer is more than one of the mere balance of probability although it is not as onerous as the criminal standard. The case Satwinder Samra and Treasury Board (Board file 166-2-26543) provides an overview on this question.
The grievor is seeking reinstatement to his position, full back pay and complete exoneration as well as the cleaning of his personal file. No evidence whatsoever has been led by the employer to suggest that the grievor's reinstatement would cause problems in the work place.
As for the evidence, the employer has not established that the material used by the grievor to build the ramp is the employer's property. The grievor's testimony is credible. The fact that one can construct a partial puzzle does not establish that the material is the employer's property. No chemical analysis of the material used in the grievor's ramp and in the employer's puzzle has been done.
The following cases were quoted: James Gregory Herritt and Treasury Board (Board file 166-2-27188), Re Indusmin Ltd. and United Cement, Lime and Gypsum Workers International Union, Local 488, (1978) 20 L.A.C. (2d) 87.
DECISION This grievance is allowed for the reasons that follow. I am not satisfied that the employer has met its burden of proof. I am not convinced on the basis of the evidence produced by the employer that the grievor "obtained and used material owned by Transport Canada, namely aluminum sheet and angle stock, to make wheelchair ramps for use in his personal business enterprise" (termination letter on file).
The employer's main witness, Peter Laverie, assembled before my eyes pieces of aluminum sheet which he found in different places of the workshop and which were purportedly the employer's property. He put these pieces side by side to the two pieces of the ramp (Exhibits E-20, E-21) constructed by the grievor. The result of this assemblage was, according to the employer, the partial reconstitution of what once was a large aluminum sheet (4' x 12') allegedly owned by the employer.
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Decision Page 17 My own observation of this "puzzle" is that although certain pieces used by the employer to construct the "puzzle" appear to fit, the same conclusion is not as easily drawn for the bent pieces of the ramp (Exhibits E-20, E-21).
The employer relied heavily on the construction of this puzzle to establish that the material used in the ramp was the same as the other pieces Peter Laverie collected in the workshop and hence, had to come from the same aluminum sheet. I remain unconvinced. Although the attempt by the employer to reconstruct a 4' by 12' aluminum sheet was certainly a valid way to try to establish the origin of the metal and although this effort was relevant and I did consider it in arriving at a decision, the rest of the evidence [or rather the absence thereof] added to the puzzle put together by Peter Laverie is insufficient to allow the conclusion that the metal used by the grievor to build the ramp is metal owned by Transport Canada.
As was pointed out by counsel for the grievor, there is no evidence of a chemical analysis having been done to establish that the metal used by the grievor originated from the same sheet of metal as the metal found in the workshop and used to construct the puzzle arrived at by the employer.
Without this analysis, one is left to looking for identifying features on both sets of metal which would link the metal used by the employer and the metal used by the grievor (this of course, is predicated on the premise that the metal used by the employer to construct the puzzle is the employer's property: even on this point, other than Peter Laverie's testimony, the ownership by the employer of certain pieces of metal used to attempt the construction of the puzzle to which was added the grievor’s ramp, is not established).
The witnesses of the employer testified that the only reliable feature which could establish the employer's property of a certain piece of metal was a "receiving report" number or "D" number also known as "traceability number" inscribed at several places on the metal after it has been purchased and received by the employer. This number is nowhere to be found on the metal used by the grievor to build his ramp.
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Decision Page 18 In addition, there is not even a lot number on the aluminum produced by the employer or on the aluminum used by the grievor which would, at the very least, establish that the metal used by both parties came from the same lot.
In conclusion, it has not been established that the pieces of aluminum sheet used by the grievor to build his ramp, are the employer's property.
As for the pieces of angle used to build the ramp, one of the pieces bore the same lot number as the lot number inscribed on a piece of angle (Exhibit E-27) which the employer had in its possession. This evidence, albeit relevant, in and of itself, is insufficient to establish that the employer owns the angle used by the grievor. The manufacturers of angle produce a large lot which they sell to different suppliers who in turn sell it to their customers. Thus it is easily conceivable and in fact, quite likely that several persons will own angle originating from the same lot. In short, the fact that the employer and the grievor possessed angle with the same lot number is not unusual and is inconclusive on the issue of ownership of this angle.
I now come to the documentary evidence or the lack thereof. The documentary evidence filed by both parties at the hearing was lacking. Of his own admission, the grievor could not produce documentary evidence to support his claim that he owned the material used in the ramp and the sole receipt (Exhibit E-11) which he produced did not relate to the type of material which he used to build the ramp.
On the other hand, the employer produced documentary evidence (Exhibit E-12) to establish that it had purchased from Ideal Metal Inc. the angle with the same lot number as that on the angle used by the grievor in his ramp (Exhibits E-20, E-21) but in the end it became clear in light of documentary evidence (Exhibits G-2, G-3, G-4, G-5) produced by the grievor, that the employer's documentary evidence was unreliable in that it pertained to angle with a different lot number (Exhibit G-4, lot number 95-013-03) and originating from a different manufacturer, Reynolds Extrusion Company (Exhibit G-5) than the lot number (1057971E0) and the manufacturer (EXAL) inscribed on the employer’s angle produced at the hearing.
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Decision Page 19 Although the documentary evidence is lacking on both sides, I am mindful of the fact that it was the employer who had the burden of proving that it owned the material used by the grievor to build the ramp.
In summary, having considered the physical, testimonial and documentary evidence, I conclude that the employer has failed to establish that it owned the material used by the grievor to build the ramp.
I note that the grievor was not discharged for having done a "homer" (i.e. using the employer's equipment to do a personal project) and that even according to the employer's own witnesses, doing "homers" was a practice tolerated by the employer. I also note that the grievor did not hide the fact that he had worked on his ramp in the workshop, going as far as leaving the ramp at work overnight in full view with his name written on it. This, in my view, is not consistent with surreptitious or deceitful behaviour and tends to support his claim that he is innocent of any wrongdoing.
For these reasons, the grievance is allowed, the grievor is to be reinstated with full pay and benefits retroactive to the date of his termination and all reference to this disciplinary action is to be removed from his file. I shall remain seized of this matter should the parties have any difficulty in implementing this award.
Marguerite-Marie Galipeau, Deputy Chairperson
OTTAWA, February 17, 1997.
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