Employee of 36 years dismissed after stealing a pack of cigarettes, discharge upheld at arbitration.

By: Michelle Stephenson, our law summer student

A pack of cigarettes may not be too small a cause for termination, according to a Manitoba arbitrator.

The discharge of a cashier (“the grievor”) by Canada Safeway for stealing a pack of cigarettes was upheld, even after he claimed that he never intended to steal them. The arbitrator had to decide whether there was cause for discipline, which turned on whether the grievor was telling the truth, and whether termination was the appropriate penalty.

The grievor’s co-worker had begun to suspect that he was stealing cigarettes from work and, after confirming her suspicions, reported it, which led to an “integrity shop” investigation. After being left with extra cigarettes by the undercover investigator, the grievor put some away but claims he forgot about the other pack his apron, which he left with. He said he did not notice the other pack as he had a lot in his pockets, had spilled tea on his hands, and when he reached into the apron, only found the one pack. He was fired the following Monday, and the Union filed a grievance, claiming he did not steal the cigarettes and should be reinstated with full back pay and seniority.

The credibility of the witnesses was significant in determining whether theft had taken place. In this case, the arbitrator found that the grievor’s story was not credible.

The arbitrator found that the employees were generally aware of the importance of honesty to the employer, that theft would result in their dismissal, and that consumable products were never to be put in aprons. In contrast, the grievor claimed that it was normal practice for employees to put these items in their aprons. The grievor’s story and behaviour was found to be illogical and inconsistent. On the other hand, the employee who noticed his behavior was found to be credible.

The arbitrator determined that the employee intentionally stole the cigarettes; however, it was recognized that theft should not necessarily result in dismissal. In Canadian Office and Professional Employees Union and Yellow Pages Group Co. 2012 ONCA 448, determining whether dismissal was appropriate required the balancing of the severity of the conduct with the severity of the penalty. The analysis is contextual, determining whether the employee’s misconduct is reconcilable with sustaining the employment relationship.

Using this test, the arbitrator balanced the grievor’s many years of service with the company and impact of losing his job against his past performance (which was not exemplary, but not poor enough on its own to justify dismissal), the impact of theft on the employer, the significance of trust in the retail industry, that it was known that theft would result in termination, the importance of deterring this behavior, and the grievor’s continued denials and dishonesty. The arbitrator found that the employment relationship was irreparably damaged and the Union’s grievance was therefore denied.

While the significance of trust in an industry that depends on income from easy-to-steal products is clear, and the seriousness of the issue was not the value of the item stolen, the fact that this man lost his job of 36 years for stealing cigarettes may surprise some people. This decision shows that even apparently trivial transgressions can damage the employment relationship beyond repair, such that terminating the employee is justified at law.
Full decision available at: Decisions Up Werier Safeway.

For more details or assistance in relation to employment law, Just Cause for Termination, Theft, Breach of Trust, Employment Relationships, or advice on what are Just Cause For Termination, kindly contact one of our Employee lawyers at Devry Smith Frank LLP.

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