Melcher and Treasury Board (Solicitor General Canada – Correctional Service)
- Before: P. Chodos
- Appearances: B. Done, for the Grievor; J. Begley, for the Employer
- Decision Rendered: 1997-04-18
Termination (disciplinary) - Theft - Prison guard - Credibility - grievor, who had been on leave for several weeks, agreed to work the day shift on the morning of July 5, 1996 - during the day he agreed to work the evening shift as well - grievor visited the welding shop during the day shift and spoke to the instructor there with a view to obtaining a small amount of welding wire to assist in repairing his trailer - according to the grievor, the instructor told him to take an entire spool as the spool had to be mounted on the welding machine - instructor told grievor to return whatever was left and grievor undertook to return the spool when he returned to work a few days later - grievor carried the box containing the spool back to his workstation - as he would be working overtime, grievor then requested one of the workers employed with a construction company doing some renovation work at the institution to carry the box out to the grievor's car in the parking lot when the worker was leaving work - one of the workers did so and this came to the employer's attention - when confronted by the employer, grievor explained that he had the permission of the welding instructor to take the box of welding wire - instructor denied that this was so - grievor was discharged for theft - evidence established that there had been a long-standing practice at the institution of lending equipment to the staff and of allowing them to have material of minimal value, such as, nuts and bolts - employer referred to a Standing Order which was in effect during the relevant period and which prohibited the removal of property from the institution without the authorization of the Warden or a Divisional Head - the adjudicator found that the grievor had removed the welding wire with the approval of the welding instructor - in so doing, the adjudicator concluded that the grievor's version of events was considerably more consistent with the circumstances and facts of the case than that of the welding instructor - furthermore, the adjudicator found that, notwithstanding the existence of the Standing Order, the employer by its actions or its lack of actions in effect condoned the practice of staff taking institutional property for personal use - accordingly, grievor was not guilty of theft when he arranged for the removal of the box of welding wire from the institution - in future, if the employer intended to rely on the Standing Order it must advise the employees of its intention to do so notwithstanding the employer's past practice.
Case cited: Faryna v. Chorny 1952 2 D.L.R. 354 (B.C.C.A.).