A recent decision from an Ontario arbitrator (SEIU, Local 1 and COGIR Canadian RH Management) has provided an important, albeit circumstantially unique, reminder that employee theft remains amongst the most serious forms of misconduct in the workplace.
The Case
Arbitrator Lindsay Lawrence was tasked with determining whether the termination for cause of a cook in a unionized workplace was justified after the employer, a retirement residence, discovered credible evidence the employee had stolen food from the kitchen.
The employee’s union grieved the termination seeking reinstatement and backpay.
During the hearing, video footage was produced showing the employee loading several scoopfuls of mashed potatoes onto a plate, covering it in saran wrap, and hiding it away to take home later. The employee was also observed taking an item from the kitchen freezer, which they concealed under their apron. The employee testified the item was a chicken carcass.
The parties provided conflicting information both as to whether the employee had received approval to take the chicken carcass and whether the mashed potatoes represented part of a permitted employee meal plan.
Arbitrator Lawrence found the employee’s conduct, as identified in the video footage, clearly showed attempts to conceal the removal of the food from the kitchen, indicating they knew what they were doing was wrong. Specifically, Arbitrator Lawerence determined: “It would be unusual to sit down and eat seven scoops of mashed potatoes. Seven scoops of mashed potatoes is a heaping plate full… It is improbable that [the employee], who had been serving dinner at the residence for years, decided that 5 pm was the right time to eat a heaping plate full of potatoes”.
Key Takeaways
Despite the employee’s nearly 10 years of service without any previous instances of misconduct, Arbitrator Lawrence upheld the employer’s decision to terminate for cause. The basis for her decision was: 1) the evidence supported the employee knew what they were doing; 2) the employee knew that what they were doing was wrong; and 3) the employee did not take accountability for their actions.
Arbitrator Lawrence was not influenced by the small monetary value of the food items taken by the employee. Instead, she followed consistent reasoning from courts and tribunals in finding that an employee’s intent is a key factor in determining whether workplace misconduct justifies their termination for cause. Arbitrator Lawrence also placed significant importance on the employee’s lack of remorse and accountability.
Following these principles, Arbitrator Lawrence concluded that "the employment relationship [was] irreparably harmed and no longer viable" due to the employee’s misconduct and lack of accountability.
Conclusion
Vegetable theft or otherwise, if your workplace discovers credible evidence of an employee engaging in intentional workplace misconduct, reach out to schedule a call with an e2r® Advisor to discuss how best to follow an objectively fair and reasonable process in confirming the intentional element of the misconduct and, where appropriate, proceeding with a termination for cause.