Worker's long service, remorse and lack of prior discipline make employment salvageable: lawyer
A Saskatchewan arbitrator has reinstated a long-serving worker who was caught stealing promotional scratch tickets but was immediately apologetic.
It’s an example of how an employee’s remorse over misconduct – even theft – can help salvage the employment relationship, especially if the employee has a good service record, says Kit McGuinness, a partner at McKercher LLP in Saskatoon.
“The relationship of trust is a two-way street and the employer doesn't get to determine unilaterally whether or not the relationship is salvageable,” says McGuinness. “If the employee has acknowledged responsibility and will make amends, I think there's a very good chance they get reinstated.”
Loss prevention officer observes worker
The 58-year-old worker was employed with Sherwood Co-operative Association Limited (the Co-op) for 18 years in file maintenance, as a back-up front-end supervisor, and a cashier. During her tenure, she served as a shop steward, vice-president, and president of the union local. She had no discipline on her record.
The Co-op ran a monthly promotional event called “Scratch & Save,” which involved scratch tickets that cashiers gave customers. The tickets provided the opportunity to save between five and 25 per cent on their purchases and they came in boxes of 500. However, the Co-op allowed double the face value of the tickets, so customers could save between 10 and 50 per cent.
On Oct. 4, 2022, a loss prevention officer observed the worker with another employee selecting and partially scratching scratch tickets. After scratching several tickets, the worker set aside two and threw the others in the garbage.
At the end of her shift, the worker shopped for groceries and presented one of the tickets she had set aside to the cashier on duty. It was a 15-per-cent-off ticket, which meant that the worker saved 30 per cent off her groceries. The worker’s groceries were worth $335.22, so she received a discount of $100.57.
Theft caught on video
Management viewed surveillance footage from the customer service area, which depicted the worker and another employee removing scratch tickets from a box, scratching them, and discarding all but two of them. The footage also captured the worker handing a scratched ticket to the cashier when she bought her groceries.
Management called the worker into a meeting on Oct. 5, where she was confronted with allegations of internal theft. The worker acknowledged what she did and the Co-op presented her with a termination letter terminating her employment for cause. She was also told that she was banned from all Co-op stores forever, although this was later shortened.
Two weeks later, the worker wrote a letter to the CEO and “the rest of the co-op family and [union] members” taking responsibility for her actions and apologizing. She stated that she was “deeply remorseful” and her action was “a last-minute thought,” calling it the biggest mistake of her life. She asked for her dismissal to be reconsidered and suggested a last-chance agreement or a probationary period.
The Co-op didn’t respond to the worker’s letter.
The union filed a grievance arguing that termination was excessive. The worker acknowledged that she made a wrong choice and asked if she could get a second chance if she paid the money back. She agreed that her actions risked her employment and said she didn’t understand why she stole the two scratch tickets.
Zero tolerance for theft
The Co-op pointed out that it had dismissed 17 employees for theft, some for as little as a drink or a chocolate bar, and the worker’s theft was the highest value of all of them. It also provided testimony from other employees who expressed concern about trusting the worker if she returned.
The Co-op also stated that its policies around theft and discipline had been in place for a long time and were posted in the break room. The policies indicated that theft was a major violation and would “always result in dismissal,” and the worker, as a union executive and shop steward, would be aware of these policies.
The arbitrator noted that, although all of the previous cases of employee theft at the Co-op resulted in dismissal, such a zero-tolerance approach didn’t assess the unique circumstances of each wrongdoing. The jurisprudence is clear that theft does not always result in dismissal and each case must be assessed on the nature and seriousness of the dishonesty and “whether it is reconcilable with sustaining the employment relationship,” the arbitrator said.
McGuinness agrees that the problem for Co-op was that it was too rigid in applying its policies.
“They asked her to give her side of the story and [the worker] was very apologetic, and then they terminated her anyway - they already had a termination letter written up and they presented it to her at the meeting,” he says. “In hindsight, I think the best practice would have been to have that investigation meeting, perhaps put her on an administrative suspension while they considered their options, and then two or three days later, make a determination on appropriate discipline.
“I think they seemed a little bit too eager to terminate her and they relied on some fairly rigid policies, and I think that kind of blew up on them.”
Was dismissal proportionate?
The arbitrator agreed that the worker’s internal theft justified discipline, but the question was whether dismissal was appropriate in the circumstances.
The arbitrator considered the worker’s lengthy, discipline-free service period and the fact that the theft was an isolated incident. The worker also acknowledged what she did and apologized with an extensive letter shortly after her dismissal, as well as offering to repay the amount.
“Remorse and accepting responsibility is something that the case law really looks closely at – if [the worker] isn’t remorseful and doesn't accept responsibility, they're probably going to terminate her for that, and if those were the facts, they would have had a much better case,” says McGuinness. “So I think it's a bit tough to say ‘If she admitted to it, our decision going in was we're going to terminate’ - I think it's really tricky and it won't help you going forward.”
However, an aggravating factor was that the act was premeditated, as the worker and a co-worker methodically went through a box of tickets and scratched them until they found ones with large discounts, and then she used the ticket to pay for groceries hours later at the end of her shift, said the arbitrator.
In addition, the policies were posted and uniformly applied to everyone, and the worker would be familiar with them due to her union roles, said the arbitrator.
The arbitrator determined that the worker should be given a second chance, as an assessment of the circumstances in conjunction with past cases supported it. The worker’s genuine apology and offer to make amends, combined with her 18 years of service and no prior discipline, made it likely that the employment relationship was not damaged beyond repair and the worker wouldn’t repeat her misconduct, the arbitrator said.
Dismissal excessive despite workplace theft
Ultimately, there were three main factors that made dismissal excessive in this case – the worker’s length of service, the lack of prior discipline, and her remorse, says McGuinness.
“There's too much case law about people deserving second chances and how much people’s jobs mean to them,” he says. “I hate ‘Monday-morning quarterbacking,’ but if I'd seen these facts prior to the decision being written, I would have given [the Co-op] less than 50/50 odds of winning.”
“On the other hand, I understand that sometimes for principled or strategic reasons and taking a zero-tolerance approach to theft, I can see why an employer might run with this,” adds McGuinness. “But they would have to have their eyes wide open to the fact that the consequences might include reinstatement with back pay.”
The Co-op was ordered to reinstate the worker with lesser discipline, leaving it to the employer and the union to work out a solution. If they were unsuccessful, the arbitrator would determine the discipline.
Although the employer’s defense was unsuccessful, it did well by having clear policies regarding theft and the consequences in place – it just could have been more flexible rather than adopting a zero-tolerance approach, says McGuinness.
“Have good policies in place, but be flexible in considering their application - especially with respect to discipline,” he says. “When you have an investigation interview, go in with an open mind without predetermined outcomes in mind, and once the interview has concluded, take a hard second look at what sort of discipline might be appropriate.”
