John Van Tent’s daughter was a big fan of the Toronto Maple Leafs. Van Tent’s employer, Brewer’s Retail, was selling cases of beer containing Leafs’ T-shirts as part of a promotion during the hockey playoffs. When Van Tent, a clerk at The Beer Store, saw a chance to get his daughter one of the T-shirts, he jumped at the chance and took a shirt from a case of beer being returned by a customer.
His employer saw his actions as theft and fired him.
Van Tent, who had worked for Brewer’s Retail for 23 years, launched a grievance. His union said he had not stolen the shirt but was interrupted by a customer before he could ask his boss for permission to keep it.
What happened was this: A customer returned some cases of beer, and one opened carton still had a shirt inside. Van Tent said that when the store manager, Chester Gregorasz, overheard him say opened or damaged cartons were not acceptable for return, Gregorasz intervened and allowed the customer to do just that. According to Van Tent, this was what emboldened him to take a T-shirt from one of those cartons. He felt that if his boss had bent the rules on accepting returns, he might just let him keep the shirt.
According to Van Tent, he took the shirt from the box, intending to ask Gregorasz for it, and stopped off at the washroom. He said he stuck it in the pocket of his jacket to keep it off the dirty floor. He left it there, hanging out of his jacket pocket, when he was called to serve a customer.
In the meantime, Gregorasz found the shirt. He turned down Van Tent’s request to keep it and left for the district office ostensibly to drop off the mail. Van Tent replaced the shirt in the case of beer. Later in the afternoon, Gregorasz returned with a representative from the union and the district manager to discuss the matter. The upshot was that Van Tent was suspended and then terminated.
The company pointed to two policies bearing on the decision to discharge Van Tent. One was a policy, reviewed annually with employees, of “zero-tolerance” for theft of any kind. The discharge was based on this policy. The company saw Van Tent’s statement that he intended to ask for the shirt as simply an after-the-fact fabrication to save his skin.
The other policy concerned how to handle promotional products: None were to be removed from the beer cases returned by customers, and all damaged cases, along with the promotional product, were supposed to be returned to the supplier as quickly as possible.
Acknowledging that Van Tent did breach the promotion policy, the union maintained Van Tent did not have any intention of stealing the shirt and that dismissal was too tough a penalty. The arbitrator agreed.
Having a strict policy on employee theft was entirely understandable and termination even for stealing items of negligible value was justified, he said. However, the employer had to prove that a theft had actually occurred. In this case, the employer had to prove Van Tent intended to steal the shirt.
He noted “significant problems” with the testimony of both Van Tent and Gregorasz, but found Gregorasz’s version of events the more problematic of the two. In particular, the arbitrator zeroed in on Gregorasz’s evidence about the returned cases of beer. The arbitrator noted that Gregorasz maintained he had not seen the cases until after the customer left, which made the presence of his signature on the returns forms puzzling. Gregorasz’s explanation that the customer had signed a blank form was “far-fetched,” said the arbitrator, especially in view of the fact that customers were routinely given a copy of the form. Gregorasz also denied looking at the cases in the presence of the customer, which the arbitrator deemed “implausible.” As a result, the arbitrator called into question his other evidence.
In addition, the arbitrator gave several reasons why it seemed unlikely Van Tent’s intentions were dishonest. Most importantly, Van Tent left the T-shirt in full view of everyone, still in its cellophane wrapper, when he went to serve the customer. The arbitrator felt there was a good chance Gregorasz had found the shirt right away before Van Tent had had a chance to speak to him. According to the arbitrator, if Van Tent had intended to steal the shirt, he would have had time to hide it in the sleeve of his jacket.
The arbitrator also noted an incident from three weeks earlier, when Van Tent asked if he could keep a pair of headphones which had been left in the store. Gregorasz had said he would check and tell him later. This lent credence to Van Tent’s contention that he was intending to ask permission, for in that similar situation he had not been turned down outright.
The arbitrator found that Van Tent’s motive in taking the shirt before asking was possibly based on the urgency of the situation as the beer cases were to be returned to the supplier right away — unlike the situation with the earphones, which were still in the store weeks later. The arbitration acknowledged that in putting the shirt in his pocket to prevent its being shipped off, Van Tent forced the hand of his supervisor, so his intention was “not totally pure.” However, it was not enough to establish dishonesty.
Not only that, but Van Tent had no idea he was in trouble when his supervisor left the store to get the mail, and he had put the shirt back in the case before Gregorasz returned.
Another flaw in the employer’s argument appeared when Gregorasz said at the arbitration hearing that Van Tent “hoped to be able” to take the shirt home, but in his notes of the meeting with his superiors there was no mention of Van Tent asking for permission once the shirt was discovered. Thus it was difficult for the arbitrator to know if he had informed his superiors and in particular Cat Boni, the district manager who fired Van Tent, that Van Tent had told him he had intended to ask for permission.
Finally, the arbitrator observed that despite company policy, no one seemed to have reported the loss to the police.
All in all, the arbitrator felt Van Tent had been extremely foolish — especially in view of his prior disciplinary record, which included a two-week suspension for an unrelated matter and his promise to adhere strictly to all company policies — but he did not find that Brewers Retail had proven he was dishonest. He substituted a three-day suspension for the termination.
For more information: Brewers Retail Inc. and the United Food and Commercial Workers International Union, Local 12R24, Ontario Labour Code Arbitration, Lorne Slotnick — Sole Arbitrator, July 28, 2004.
Lorna Harris is the assistant editor of Canadian HR Reporter’s sister publication CLV Reports, a newsletter that reports on collective bargaining and other issues in labour relations. She can be reached at (416) 298-5141 ext. 2617 or firstname.lastname@example.org.