Well, not always. Labour arbitrations are fact specific. In our review of a recent case below, theft, or grazing, by a retail employee was worthy of discharge. Arbitrator Ian A. Hunter provides a timely review on this issue for retail employers and concludes:
Because employee theft is a major issue in the retail food industry, Metro operates on the basis that ‘theft equals discharge’. This was known to all employees. It was particularly known to the Grievor through her long experience as a Union Steward.
I have considered carefully whether this is a case where I should mitigate the penalty of discharge. I have concluded that it is not. …
Metro Ontario Inc. and UFCW-Can, Local 175 (Lazzaro) 2013 CarswellOnt 8422 (Ont. Arb. Bd.)
A 21 year employee who, had been a Union Steward for most of that time was suspended during an investigation and subsequently discharged in March 2012 for violating Metro’s anti-theft policies. These policies were posted throughout the store, made known to Metro employees when they are hired, and regularly discussed during employee meetings. Metro, like other retail food employers, had zero tolerance for employee theft and terminated even for a first offence.
Here’s a brief review of the evidence Metro relied on to support the termination at arbitration:
February 18, 2012
The grievor was on video entering the bakery preparation area and removing cookies from a baking tray and adding these cookies to a pre-packaged container of cookies that retailed for $6.99/dozen. She then took additional cookies in her hand and left the department.
February 19, 2012
A video tape shows the grievor entering the bakery area, carrying and eating something that resembled a cookie.
February 22, 2012
Video surveillance shows the grievor in the deli department receiving six slices of turkey from a deli clerk. She placed them in the bottom of a shopping cart that appeared to contain other items. Next, the video shows the grievor back at the deli counter getting a package of salami from a clerk – the video clearly shows the grievor consuming a slice of product before the product is packaged. A cash tape record of the grievor’s purchases did not show that she paid for the six slices of turkey.
February 26, 2012
A video showed the grievor in the bakery preparation area carrying a clear plastic bag containing six buns. The grievor speaks to a clerk who prints a label and hands it to the grievor who then sticks the label to the bag. As she is leaving the area, the grievor removes a turnover from a bakery tray. The cash tape record shows that the buns were purchased for $1.99 when these items normally sell for $4.74.
Later that day, a video showed the grievor at the deli counter buying sliced meat and cheese. She takes a slice of meat and a slice of cheese off the scale, before the produce is weighed, and eats it.
During Metro’s investigation into these incidents, the grievor was not forthcoming with her memory of these recent events. When questioned as to whether she had been consuming product without payment her answer was “I don’t recall”, that she did not remember that far back and she even suggested that she might have been asked to try a new product.
The arbitrator also picked up on some discrepancies between the grievor’s testimony and the evidence brought forward at the arbitration and made unfavourable findings against her based on credibility. For example, on the February 18 incident, she testified that she took cookies from an “extras rack” and tried to implicate a co-manager saying that the co-manager had actually taken one of the cookies and eaten it. Other witnesses denied that there was an “extras” tray in the bakery department. The grievor conceded that the extra cookies she had put into the pre-packed container would be unknown to the check-out cashier. With respect to the February 22 video footage, the arbitrator found that the grievor trapped herself in lies when she suggested she was surprised by the price of turkey and left it behind when she made her grocery purchases later:
…Nothing about this explanation had an air of reality; I observed the Grievor carefully as she testified about this and I do not accept her evidence. The Grievor acknowledged that the sliced turkey could not be re-sold and it represented a loss to the Company.
She repeatedly said things like this: ‘I didn’t try to hide what I was doing … everything was done in the open’. But this is not true. The Grievor’s thefts were detected only because the Company installed covert cameras which revealed her conduct. While I feel sorry for the Grievor and I accept that some of her remorse is genuine, I must conclude on all of the evidence put before me that the Grievor was detected in repeated violations of the Company’s [policies]. The Grievor now wishes that things were otherwise, and I wish that things were otherwise. But facts have a stubborn reality about them, and the facts prove that the Company had grounds (based on theft and violations of the Employee Purchase Policy) for terminating the Grievor’s employment.
You’re probably asking why the Union grieved her termination
The law in this area does not always favour automatic termination. As Arbitrator Ian A. Hunter comments in the decision:
 Nevertheless, more recent arbitration decisions … have moved away from the position of near automatic discharge for theft in the retail food industry to a more nuanced incorporation of the arbitral principles of progressive discipline. Brown and Beatty, Canadian Labour Arbitration (3rd ed.) puts the point this way (at 7:3314): … it is now widely accepted by a majority of arbitrators that a person cannot automatically be terminated from his employment because he has engaged in one or more acts of theft.
Instead, arbitrators consult a checklist of mitigation factors that might mitigate the severe penalty of discharge:
- bona fide confusion or mistake by the grievor;
- grievor’s inability to appreciate the wrongfulness of his act;
- impulsive or non-premeditated nature of the act;
- relatively trivial nature of the value taken or harm done to the employer;
- frank acknowledgement of misconduct by the grievor early on;
- sympathetic motive (e.g., extreme financial need);
- clean prior disciplinary record;
- future prospects for good behaviour;
- economic consequences of termination.
What made this case different than the widely accepted arbitral approach?
Arbitrator Hunter made the following observations:
- The store was frequently unsupervised and Metro needed a deterrent to employee theft.
- As a Union Steward, the grievor should not be held to any less of a standard of honesty than the other bargaining unit employee she represented.
- The employer had satisfactorily proved not one, but four instances of product theft and several other concerning instances of questionable conduct by the grievor.
- Metro did not consider the grievor a credible witness during the investigation and she repeated this behaviour as a witness at arbitration.
- The grievor was remorseful at the hearing, but remorse after one is caught stealing is not quite the same thing as contrition – there was little evidence of contrition in the evidence or demeanour of the grievor at the hearing.
- The grievor knew Metro’s policies and knowingly violated them without any frank acknowledgement of wrongdoing either at the investigation or arbitration – instead, there were excuses, none of which stood up to scrutiny.
Finally, the arbitrator quoted from an earlier unreported 1999 arbitration by Arbitrator Levinson (Super Fresh Foods Markets and UFCW, Local 175 (Boyce)), as applicable in the circumstances:
…Mr. Boyce’s lack of forthrightness at the hearing further demonstrates a continuing lack of trustworthiness and honesty and belies his testimony that he has learned his lesson. In the end, it is reluctantly concluded that the gravity of Mr. Boyce’s misconduct (a failure to pay for his lunch at work) and his lack of forthrightness at the hearing outweighs any positive inference that can be reasonably drawn regarding Mr. Boyce’s prospects for rehabilitation and the viability of continuing his employment relationship with his Company from his years of service, his disciplinary record, his admission and his apology.
Arbitrator Hunter found that the loss of trust and dishonesty stood in the way of reinstatement notwithstanding the existence of some mitigating factors he identified (i.e., grievor’s long service, clean disciplinary record, relatively low value of the theft, no lasting business impact or devastating economic consequences suffered by the grievor).
What this means for employers.
This is a welcome decision for retail employers where employee theft is always an issue. Nonetheless, it is also a case where the facts clearly drove the outcome. If theft is a problem at your workplace, you will want to take the following steps: (1) have carefully drafted zero-tolerance theft policies that are communicated to employees as often as possible from hire to annual reviews and at staff meetings in between; (2) monitor employee behaviour with video surveillance; (3) if the evidence you gather is not clear, don’t use it until you’ve gathered more and investigated fully; (4) always be consistent when enforcing your policies; and (5) consider whether zero tolerance will work on the facts you have gathered (i.e., consider any mitigating factors that might influence discipline).