Company had reasons for suspicions but investigation was botched, leaving facts that would have absolved worker undiscovered
One thing consistent with situations where an employee is suspected of misconduct is that before any decision is made, the employer must conduct a fair and reasonable investigation so it has all the relevant facts. This includes interviewing potential witnesses, checking records, and getting the employee’s side of the story.
It doesn’t matter how serious the misconduct is. Getting the facts straight should be a priority, because a wrongful acusation and dismissal can be like throwing fuel on the fire.
A Saskatchewan employer wrongfully dismissed a worker when it failed to properly investigate its suspicions that the worker stole stock from its property, an arbitration board has ruled.
Greg Snaith began working as a delivery driver at the Prince Albert, Sask., Co-op Home and Agro Centre in 2005. In 2011 he was promoted to yard foreman. The new position involved supervising the receipt of customer orders coming from the manufacturer, and inspecting, storing and loading product for delivery to customers’ contractors.
Snaith had no discipline on his record. When he started working for the co-op centre, he signed an acknowledgment that he was aware of its loss prevention policy and its zero tolerance of internal theft.
Common procedure at the co-op’s yard was for customer orders to be accompanied by an invoice when delivered to a customer’s worksite. For windows, the serial number was on a label stuck to the glass with information on the customer number and the centre’s number. Windows also included a tag on the jamb or frame with the customer’s name.
Window orders were stacked in a rack, but sometimes the racks were full and some windows put down somewhere else. This could result in broken or missing windows.
Snaith was building a new home, and set up an agreement with management to purchase a large amount of supplies from the centre. An account was set up for him and whenever materials were delivered to Snaith’s worksite, the new home sales estimator — who worked closely with Snaith —would bill his account. Invoices were sent at the end of each month and Snaith would pay the amount on each invoice.
Worker ordered items from employer
In January 2013, Snaith indicated he wanted to buy some windows to use in the construction that summer. The estimator told him he could use two windows from a customer’s order that had recently been returned to the yard rather than buy new ones. This allowed Snaith to get a deal on the windows and the co-op centre to use up old stock.
The estimator wrote up a quote form, crossed out two of the windows Snaith requested and wrote a note to use two of the windows from the returned stock. He then told Snaith to set aside the windows and Snaith asked him to get a price for them. The final order was for seven windows and three doors.
Snaith’s order arrived at the centre in early August 2013. Around that time, Snaith did a routine warehouse check and noticed the two windows he had set aside were missing. He reported this to the estimator and remarked that “the way things go missing around here we should look for them on Kijiji.” The estimator thought Snaith had said he had found some windows on the Kijiji online trading website and thought it was unusual to say.
Later, Snaith found about 100 dirty windows in front of the warehouse with no tags on the jamb and not on a rack. He wrote “sold” on two of them with a marker, then told the estimator about them and asked him to give him a price. However, the estimator didn’t respond.
Snaith requested his order of windows and doors to be delivered on Sept. 30. He had to drive a delivery truck that day and couldn’t be at the yard, so he showed another staff member where his order was, including the two replacement windows, making no attempt to conceal anything in the order. The order was loaded and delivered by other employees while Snaith was out in the truck.
Before Snaith left, he asked the estimator to bill him for his windows. The estimator prepared the invoice, which totaled more than $8,000. However, the two replacement windows weren’t included.
Though the delivery was made on Sept. 30, the estimator dated the invoice Oct. 1, which means Snaith wouldn’t receive it until the end of October.
Missing windows raised suspicions
On Oct. 21, a large window order from another customer was called for delivery. Three of the windows were missing from the yard. One was later found at the customer’s site, but two remained missing. Snaith reported the missing windows to the estimator and referred to a recent break-in when the windows could have been stolen.
The co-op centre operations manager didn’t think the windows had been stolen in the break-in, as the hole in the fence was too small to pull the windows through. He and the estimator, along with Snaith’s supervisor, became suspicious since Snaith hadn’t reported any missing inventory after the break-in and the missing windows were the exact kind Snaith had ordered for his home.
The operations manager decided to check out Snaith’s construction site. He found the contractor’s key and let himself in to look around. Once he returned, he checked Snaith’s invoices to see if two windows had been billed, which of course they had not been since the estimator had forgotten to do so on Sept. 30.
The co-op centre called the police on Oct. 24 to report a theft of the windows. When the police visited him, Snaith understood what was happening and called the operations manager to tell him he took the two windows, but the estimator had forgotten to invoice him. He also explained they had no tags and had been in the yard for a long time.
The police charged Snaith with possession of stolen property under $5,000 and the co-op center suspended him until further investigation. However, it didn’t conduct a further investigation as it didn’t want to interfere with the police investigation. Since Snaith had admitted to taking the windows and it had a zero-tolerance theft policy, it terminated Snaith’s employment effective Oct. 31.
The arbitration board found that the co-op centre was too hasty when it jumped to the conclusion that Snaith had stolen the windows. This conclusion was based on two flimsy pieces of evidence — a secondhand report that Snaith had mentioned windows on Kijiji and the fact that the missing windows were the same size Snaith needed.
The operations manager decided to go to Snaith’s construction site and conduct surveillance and invade his privacy rather than check to see whether Snaith had loaded his own order — which he hadn’t, though it was assumed he had. He also failed to check to see whether the invoice had been delivered to Snaith — which it hadn’t, meaning Snaith didn’t have the opportunity to correct the mistake. Finally, the board noted the co-op centre didn’t ask Snaith about the windows to get his side of the story.
The board found the co-op centre had some reason to be suspicious, since there were two windows missing that were the kind required by Snaith for his home construction and Snaith’s position gave him control over inventory, in addition to his Kijiji comment. However, it failed to properly investigate the situation and therefore could not prove on a balance of probabilities that Slaith stole the windows, said the board.
The failure to properly investigate included not checking the invoices, not getting Slaith’s side of the story, and not talking to the estimator who neglected to include the windows on the invoice. A simple investigation would have shed light on the circumstances as well as the fact that Snaith made no attempts to hide that he was taking the windows, said the board.
In addition, the board pointed out that Snaith had a clean disciplinary record, placing a further onus on the co-op centre to prove Snaith was guilty of misconduct serious enough to justify dismissal. The board determined the employer did not establish such proof and ordered Slaith reinstated with compensation for loss of pay since his dismissal.
For more information see:
