‘It's the employer's own rule, so if it’s not applying it evenhandedly, it's out the window’: lawyer
“Policy doesn't have the force of law, but it's the way that things are done inside an organization – and if an organization sets its own internal rules, it had better follow them.”
So says Richard B. Johnson, partner and co-founder of Ascent Employment Law in Vancouver, after a British Columbia arbitrator found that an employer didn’t have just cause to fire a worker for not following company policies because the application and enforcement of those policies was “lackadaisical” and inconsistent.
The worker was a front station attendant for SSP Canada Food Services, a company that operates several food service counters at Vancouver International Airport. She worked at two of the locations in the airport – called Dirty Apron and Nourish by Dirty Apron - that sold baked goods. She was hired in early 2023, working both the day shift and the night shift.
On the night shift, three managers were responsible for all of the locations, with each manager responsible for four or five locations each. As a result, the managers were always busy.
All of the food products that SSP sold had best-before dates, after which they were to be thrown out. The company had an official practice for managers to look at the products each day and decide if they were waste before employees discarded them. However, since the managers were busy, this usually didn’t happen. Employees weren’t supposed to take expired food for themselves, as all inventory had to leave the store as a sale, an employee meal, or waste. Managers were responsible for entering all of these into the point-of-sale system.
According to another SSP employee, croissants that were baked that day were thrown away at the end of a shift, but cookies, muffins, and cruffins were kept another day and bowls, wraps, granola, and yogurt were kept for three days. According to the same employee, managers never came to assess the pastries for discarding, as on the night shift they were too busy.
Workplace policy
The worker, who was originally from Ethiopia, didn’t like wasting or throwing away food. When she felt that to much product was being baked, she suggested reduced amounts to the bakers. She was trained on the company’s computer system and the cash handling policy, but she claimed to be unaware of SSP’s policy on expired food.
At the end of each shift, the worker recorded the waste products, usually on a piece of paper. Early in her employment, she left the expired items in a bin for day staff to use or discard, but she was later told that this created too much work and she should just throw them away. As a result, she started putting expired items such as croissants or waste butter in a bag to take home to her children. She never saw a manager enter her waste notes into the system when they cashed her out at the end of her shift or tell her which baked goods to throw away.
The worker also claimed that a manager directed her to give a coffee to an airport employee on one occasion and other employees left expired bakery products in bags for pickup by airport cleaning staff.
In early 2025, SSP became aware of inventory discrepancies and video footage that showed the worker bagging baked goods and taking them on five separate occasions. It assigned the company’s loss-prevention manager to investigate.
The worker was interviewed during the investigation, although the investigator didn’t ask her about her understanding of the food waste policy or whether she had been trained on it. The company also didn’t keep a record of the questions asked or the worker’s answers.
Termination for theft
SSP determined that the worker’s actions amounted to theft – it also alleged that she admitted to giving pastries to a friend at the airport, which it called “sweetheart theft” - and violations of the company’s waste recording procedures. It terminated her employment in April 2025.
The arbitrator found that SSP failed to prove on a balance of probabilities that the worker had committed theft or knowingly breached a clear company policy. SSP was unable to establish that it consistently enforced its policy on recording food wastage or counter the worker’s claim that she hadn’t been properly trained on the policy, said the arbitrator.
The arbitrator pointed to a “lackadaisical” and informal waste recording system that could cause inventory tracking issues, the absence of managerial input of recorded waste into the point-of-sale system, and poor communication on the policies on expired food. The worker testified that she always recorded discarded items and left notes for managers, who were often unavailable – which SSP didn’t dispute.
“There wasn't even a normal application of the policy – [SSP was] basically rolling it out to try to use it as a tool here, but it wasn't something that was regularly and consistently applied,” says Johnson. “And the worker gets the benefit of the doubt if that's the case - it's the employer's own rule, so if it’s not applying it evenhandedly, it's out the window.”
The arbitrator also found the video footage of the worker bagging and taking expired product showed no attempt to hide what she was doing or any suspicious behaviour, showing that she was likely unaware that she was doing anything wrong. In addition, SSP’s investigation was lacking, as it didn’t try to get the facts on the worker’s intentions or knowledge of the policy and there was no transcript of the worker admitting to “sweetheart theft,” the arbitrator said.
Fair investigation
It's important to go into an investigation into potential misconduct without a predetermined outcome or theory as to why something happened, because that leads things down a path of assumption, says Johnson.
“When the investigator went into this, coming from a loss-prevention background, he already had a predetermined bent that there had been theft of pastries, and he went through the evidence-gathering process with a presumption of wrongdoing,” he says. “An employer needs to make sure that it’s following the hard evidence and not making assumptions or logical leaps, so that it’s able to tender logical findings to support a just-cause dismissal.”
The arbitrator referred to the Wm. Scott framework, which requires a contextual assessment of employee misconduct and proportionality in disciplinary responses, as well as the KVP test, which assesses whether employer rules in unionized settings are reasonable, clearly communicated, and consistently enforced.
The arbitrator found that there was no evidence of dishonesty by the worker, she co-operated in SSP’s investigation, and she expressed remorse at the hearing. In addition, she had no prior discipline on her record.
Termination excessive
The arbitrator determined that termination of employment was excessive and ordered SSP to reinstate the worker with no loss of seniority and compensate her for lost wages, including tips and benefits. A written warning was substituted for the termination on the worker’s record.
“I think the arbitrator had to go back to the very beginning of the disciplinary process in order to correct the company's failings in the way that it navigated the process,” says Johnson. “He kind of did a reset by substituting a written warning – [the worker] now knows what's right and what's wrong and she's been put on clear notice, so that gives the employer an opportunity to go through the proper training and correct the things that were problematic in the investigation.”
Johnson stresses the importance of ensuring that workplace policies speak to the integrity of the specific operation.
“For retail-based operations or those that have a high amount of inventory, make sure that your loss-prevention policies are tight - certain industries will have certain misconduct that occurs more frequently,” he says. “Focus on those items that are more likely to occur and make sure the policies addressing that behavior are clear, and that employees fully understand what's right and what's wrong and what the sanctions are.”
And when alleged misconduct occurs, employers need to make sure that they’re taking the time and putting in the resources for a proper investigation, adds Johnson.
“The loss-prevention officer couldn’t go back in time and ensure that the worker was properly trained on the policy, but the way that he conducted the investigation - principles of fairness, putting the policy to the worker, giving her a fair opportunity to address any of the allegations against her, keeping adequate records of the evidence, and then making logical conclusion – missed some of the critical stuff of an investigation.”
