Intellectually-limited worker not guilty of theft, but he compounded honest mistake by panicking and trying to come up with a story
Theft of the employer’s property is one of the most serious forms of misconduct an employee can do. It breaches the trust that is usually an essential part of the employment relationship and also strikes at the heart of the employer’s business – the ability to make money. So when an employee is caught stealing something at work, it’s not surprising if serious discipline and even dismissal are the result.
But theft isn’t always grounds for dismissal, and sometimes what seems like theft may be an honest mistake. Mitigating factors should always be taken into consideration when it comes to determining how to deal with an employee who’s taken something they should have. And if the employee has impaired mental functions, there’s a good chance the bar for dismissal is extra high. What seems like theft could just be an honest mistake. Or at least if an employer can’t prove otherwise, it likely can’t prove just cause.
An Alberta employer did not have just cause to dismiss a worker who was caught taking product for his lunch without paying for it, an arbitrator has ruled.
The 60-year-old worker was hired as a courtesy clerk at a Safeway grocery store in Calgary in 1993. Hi was placed at the store through a brain injury centre, as the worker underwent two brain surgeries in the late 1960s that left him with brain damage. He had a memory deficiency and an IQ score that was on the low end of the borderline range, placing him just slightly above what was considered intellectually disabled. As a result, the worker was able to complete Grade 9 but couldn’t go further in school. Psychological evaluations determined the worker had impaired cognition and sometimes couldn’t understand verbal instructions.
The worker also suffered from epilepsy and was on medication that reduced grand mal seizures but left him susceptible to petit mal seizures. In addition he had reduced hearing and had to wear a hearing aid.
The worker had taken personality assessment and psychological tests that revealed a tendency to exaggerate and deny certain problems.
The worker’s duties included bringing shopping carts from the parking lot into the store, cleaning the store, emptying garbage, doing price checks, bagging products at the cashier stations, and assisting customers. The store manager saw him as a competent courtesy clerk and allowed him to train new clerks.
In 2000, the worker applied for a general clerk position, which had a higher pay and greater responsibilities. However, the job required a good memory and had a faster pace, and the worker couldn’t handle it. As a result, he was returned to his old courtesy clerk position.
Safeway had company policies on employee payment for products and there were signs reminding employees to pay for product before going to the lunchroom. The worker was aware of the signs and the policies.
Worker didn’t pay for part of his lunch
On June 2, 2013, the worker purchased food for his lunch at a self checkout till, a common practice for employees and something he had done many times before. He was able to operate the till, though he sometimes needed help if something didn’t have a bar code that could be scanned.
A cashier assigned to monitor the self checkout area observed the worker scan his items at the till. The worker had trouble inputting a bread roll, which didn’t have a bar code to scan. The cashier helped him key in the correct code and noticed a bag of potato chips — valued at $1.14 — that the worker had put in his basket without scanning. He watched the worker complete his purchase and saw the worker still hadn’t scanned the chips, so he reminded the worker to do so. According to the cashier, the worker began walking away with the items and the cashier reminded him twice more that he hadn’t paid for the chips. The worker reportedly mumbled something like “oh yeah” but continued into the lunch room. The cashier was familiar with epilepsy and didn’t notice any changes in the worker’s behaviour that could be attributed to a petit mal seizure.
After the worker went into the lunchroom, the cashier reported the incident to the store’s assistant manager. The assistant manager went to the lunchroom where she saw the worker eating his lunch with an open bag of chips.
The assistant manager moved beside the worker and made eye contact with him. The worker began crumpling a receipt, so she took it from him and saw it didn’t include the bag of chips. She asked the worker to come to her office, which was beside the lunchroom.
The assistant manager waited but the worker didn’t come to her office. Instead, the cashier at the self checkout till saw him bring the bag of chips to the till, scan it, and pay for it. The worker said “they must not have scanned,” but the cashier never saw the worker try to scan the chips the first time.
The assistant manager reported the matter to the senior manager in the store and went back to work at the customer service desk. Later, the worker came up to her and gave her a receipt showing payment for the bag of chips. The assistant manager testified the worker seemed “upset, agitated, and a little angry” and said, “there.”
Soon after, the manager called a meeting and suspended the worker pending an investigation. The worker was upset and told the assistant manager “I never want to see you again.”
Worker’s explanation wasn’t convincing
A few days later, Safeway investigators interviewed the worker, who had a union representative with him. The worker said he had heard the cashier say something about the chips and he turned around, but he proceeded to the lunchroom. He said when the assistant manager grabbed the receipt from him, he realized something was wrong and rushed downstairs to ask the cashier if he had paid for the chips. He also said he realized he hadn’t paid for the chips “about three seconds” after the assistant manager took the receipt.
The worker explained he often forgot to pay for things because he had no short-term memory and sometimes other employees would cover for him, which made him feel “ashamed and stupid.” Sometimes that brand of chips had scanning issues, but when that happened the screen froze and the transaction couldn’t be completed. The worker acknowledged he was able to complete the transaction with his debit card.
The investigators didn’t believe the worker’s claim that he had forgotten to pay and felt his actions indicated he was aware of what he was doing. Safeway management determined the worker was guilty of theft and dishonesty during the investigation, along with breaching the company policy on employee purchase of product. Though the worker had a clean record and a long term of service, the company felt his misconduct was serious enough to warrant termination of employment.
The arbitrator noted that the worker’s level of intellectual functioning complicated the analysis of whether the worker was guilty of intentional theft or made an honest mistake. The worker had a low IQ, poor short-term memory and low cognitive ability, but he had a better level of verbal comprehension and reasoning that allowed him to perform the duties of a courtesy clerk, which were repetitive and consistent. However, the arbitrator also noted psychological evaluators determined honesty and intellectual functioning are not related; dishonesty occurs "at all points on the intellectual spectrum.”
As a result of the worker’s intellectual level, his account of the incident in both the Safeway investigation and in his testimony were full of inconsistencies and exaggerations. This made it difficult to determine between when the worker couldn’t recall something and when he was using his problems “as a crutch to avoid explaining damaging events,” said the arbitrator.
The arbitrator found the worker’s account of the incident was “not so much dishonest as it was desperate.” The worker seemed not to be trying to lie, but rather trying to say the right things to get his job back, while being hindered by limited cognitive and intellectual skills.
The arbitrator ruled out explanations involving a scanner error or a seizure, since the worker was able to complete the transaction. That left the possibility of either an intention to steal or simply forgetting to pay. If theft was being attempted, the worker did it in plain view and didn’t tried to hide it, said the arbitrator. It was also likely the worker didn’t hear the cashier’s further attempts to get his attention after the initial acknowledgement, since he used a hearing aid and was turned away from the cashier. Though this may have raised suspicions for Safeway, there was no way to draw a conclusion from it, said the arbitrator.
The arbitrator also found the worker’s actions in the lunchroom — such as crumpling the receipt and going back to the till instead of the office — further aroused suspicions, but could just as easily be explained as someone with limited cognitive ability panicking as someone acting dishonestly. The worker’s panic may have even been contributed to by the assistant manager, who acted aggressively when she grabbed the receipt and ordered him to the office, said the arbitrator.
The arbitrator determined none of the actions by the worker established that he intended to steal the chips when he left the till; they could be just as easily explained by the worker’s inability to deal with the situation due to his limited mental abilities. In addition, Safeway didn’t consult the worker’s personnel file during the investigation that might have helped it evaluate the situation. This made the investigation “seriously flawed,” said the arbitrator.
Safeway was unable to establish that the worker intended to steal a bag of chips and therefore could not establish just cause for dismissal. It was ordered to reinstate the worker to his courtesy clerk position with compensation for lost pay and benefits.
However, the arbitrator also found the worker was guilty of misconduct, though not deliberate, and he intentionally tried to thwart the investigation with exaggerations and untruths. Because of this, a two-week suspension was deemed to be appropriate discipline, with a stipulation that the worker no longer use self checkout tills upon his return to work.
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