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Honour among thieves

Should the motivations and value of employee theft be taken into account?

By Jeffrey R. Smith

Theft is one of the worst workplace offences. It has the double whammy of breaching the employer’s trust as well as potentially damaging the bottom line of the business.

As such, it’s usually treated pretty harshly, with termination often the solution.

But should all employee theft be considered equal and treated the same way? Should eating a few extra cookies at a bakery be on par with stealing thousands of dollars? A lot of things have to be considered, including the employee’s role with the company, but ultimately it can boil down to a breach of trust — something that can constitute just cause for dismissal.

Last year, Ontario grocery chain Metro fired several employees for taking food they didn’t pay for, including one employee caught on video taking extra cookies and deli meat on multiple occasions. The chain had a strict policy prohibiting such practices and outlining how employees were to purchase product. An arbitrator upheld the firing, finding the employee’s denials and explanations didn’t hold up to scrutiny. The combined dishonesty of stealing and trying to make excuses was sufficient for termination, said the arbitrator.

On the other hand, if an employee is suspected of theft, the employer better have proof.

Several years ago, an Ontario municipality accused a building inspector of stealing building fees. It called the police and the employee was charged. However, it turned out the municipality didn’t hand over all the evidence — including evidence that would have exonerated the employee — and the employee was awarded 12 months’ pay in lieu of notice and $550,000 in punitive damages due to the fact the employee’s career and marriage were irreparably damaged.

But theft, even serious theft, doesn’t necessarily mean dismissal is in order. An Ontario nurse who was addicted to drugs stole Tylenol 3, OxyContin, Percocet and morphine from the hospital where she worked from 2007 to 2009. When she was caught, the hospital dismissed her for serious breach of trust by using her access to drugs to steal them and violating her duties as a nurse.

However, an arbitrator accepted the nurse’s expressed willingness to overcome her addiction and a positive prognosis, despite the acknowledged risk of a relapse. The hospital was ordered to investigate accommodation options and find a position where the nurse didn’t have to administer drugs. The time since her termination would serve as a lengthy suspension.

So you have an instance where a grocery store had just cause to dismiss an employee who stole a few cookies and deli meat slices, and another instance where dismissal was too harsh for someone who stole drugs from a hospital.

Is the former instance a worse violation of trust? Should the employer be expected to overcome a breach of trust because the breach was partly caused by an addiction or other disability? Employee dishonesty — especially when it culminates in serious misconduct — is difficult for an employer to deal with, regardless of the cause. Should the cause of dishonesty matter when determining a solution?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at Jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.  

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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