By Jacques Bélanger, from our Labour and Employment Law Group.
June 21, 2017 — Once a thief, always a thief, as the saying goes. But should an employee be fired merely for stealing a few dollars’ worth of goods from his employer? That question recently went all the way to the Court of Appeal.
The loot: two bags of chips!
The employee has been with his employer, a potato chip company, for 35 years. One day, a colleague sees the employee slip two bags of chips in his lunchbox. The colleague reports the incident to a supervisor.
After his shift, as he is about to leave the plant, the employee is stopped by a representative of the employer who asks to examine the lunchbox. Despite being caught red-handed, the employee denies having stolen the chips, claiming instead that he wanted to bring them back to a coordinator. Throughout this meeting, the employee is very arrogant. He is suspended without pay pending an investigation.
Two days later, at a meeting with the employer and a union delegate, the employee persists in denying the theft. He does not apologize, not does he express any regret.
The day after this meeting, the employee is fired. In the termination letter, the employer raises several arguments to validate its decision: the gravity of the employee’s behaviour, his intention to profit from his act, his awareness of a strict internal regulation on theft, his knowledge of the policy allowing employees to purchase the employer’s products at a discount, his disregard for the employer’s property and his lack of regret and remorse during the investigation.
In the employer’s view, the relationship of trust essential to employment has been definitely broken and dismissal is the only option.
The decision is challenged
The union files a grievance on behalf of the employee, seeking his reinstatement.
After considering the evidence and the circumstances of the case, the arbitrator quashes the dismissal, considering that the employer had not demonstrated the need for such a harsh sanction. Instead, the arbitrator imposes a six-month suspension without pay, a lesser but still substantial sanction.
As the arbitrator explains, the employer had made a choice. It was aware that the theft was not an isolated incident: the employee had been stealing regularly for over a year. Still, the employer did not extend the scope of its inquiry beyond the latest occurrence of theft. It based its sanction on the most recent misconduct, the theft of two bags of chips.
The matter then goes to the Superior Court, which quashes the arbitration award and confirms the dismissal. Tenaciously, the union takes the case to the Court of Appeal.
And in the end, the Court of Appeal rules that…
The employee will not be dismissed: he will be suspended for six months without pay.
In Syndicat des salarié(es) des croustilles Yum Yum (CSN) c. Croustilles Yum Yum enr. (division des Aliments Krispy Kernels inc.), 2017 QCCA 810, the Court of Appeal reversed the Superior Court’s decision and approved the arbitration award.
According to the Court, theft, fraud or embezzlement do not necessarily give just cause for summary dismissal. Once the dishonest conduct is proven, the employer must determine the appropriate sanction after consideration of all the facts.
What should employers keep in mind?
Sanctioning an employee’s dishonest behaviour is a delicate decision; as we just saw, it can give rise to long and costly judicial proceedings.
Each case is special. The employer must consider the nature and gravity of the employee’s dishonesty to decide whether the bond of trust essential to an employer-employee relationship has been broken. The nature and requirements of the position are also factors to be considered.
Before making such a delicate decision, expert advice can help an employer avoid many problems and expenditures.