The grievor was fired for theft from a fellow employee based on a surveillance video and her responses in an interview. While this constituted only circumstantial evidence, the arbitrator found, it did fulfill the probability test and was sufficient to support the termination.
The evidence of a lunchroom video surveillance camera was not sufficient by itself to establish that an employee had committed theft. However, additional circumstantial evidence supported the employer’s case for termination.
S.D. began working in 1999 at a distribution centre that serviced a large retail clothing chain. She had no discipline on her record when she was fired on Jan. 11, 2010.
It was not uncommon for employees to bring in merchandise to sell to other employees.
On Dec. 14, 2009, an employee at the centre had brought jewellery to sell during lunch break. After showing the jewellery, she returned it to a white bag and then placed the bag inside her handbag. She then stowed the handbag on a shelf in the lunchroom.
The worker noticed the bag of jewellery was missing when she retrieved her handbag at the end of the day. Once notified of the incident, the employer began an investigation.
Video surveillance
The employer’s loss control expert began by reviewing the videotape from the surveillance camera in the lunchroom.
The tape showed the worker displaying her jewellery to coworkers over the lunch break. S.D. watched from a distance. The worker then returned the jewellery to her bag and stowed it.
At 2:56 p.m. — four minutes before the end of shift — the tape shows S.D. approaching the shelf and removing something resembling a white bag from another bag on the shelf. S.D. is seen placing the bag under her jacket, hurrying out of the lunchroom and then exiting the building.
Based on this evidence, the employer conducted an interview with S.D. on Jan. 5, 2010. Present at the interview were the employer’s loss control expert and a witness along with S.D. and a union representative.
S.D. was informed that the employer’s investigation was supported by video evidence from the lunchroom. S.D. was then asked about what transpired in the lunchroom at about 3:00 p.m.
S.D. said that she went into the lunchroom at the end of the day to retrieve cosmetics catalogues from a friend’s bag. She allowed that she may have also taken a bag with “other things.” S.D. said she didn’t know what those other things were because she had not yet looked in the bag. Pressed further, she admitted that she had taken the bag without permission and that she had taken it by mistake. S.D. signed a statement to that effect and apologized.
S.D. was fired.
Notwithstanding the fact that S.D. testified during the hearing that she had not taken the jewellery, the employer said that the statement that she gave at the interview amounted to an admission. The apology and the assertion that she had made a mistake were initial attempts to save her job. Now that she had been fired, S.D. was denying the theft. The circumstantial evidence was sufficient to support the case for theft, the employer said. Termination was warranted.
The union said the admission during the interview was not reliable because S.D. was under pressure and frightened. The evidence was circumstantial and any doubts or confusion arising from the interview should be resolved in S.D.’s favour.
The Arbitrator disagreed.
Denials not credible
S.D. acknowledged during the interview that she had taken something that did not belong to her and she had apologized for that. There was nothing particularly confusing about what she confessed to, the Arbitrator said. Moreover, the fact that S.D. signed her statement in the presence of a union steward called into question the assertion that she was frightened during the interview.
“These admissions and the video evidence together, (including the fact the grievor appears to have placed the item under her jacket in a concealed fashion), establish, in my view that the grievor did indeed take the jewellery that she had been gazing at in the video. Her testimony that she did not take anything other than the books is, in these circumstances, simply not credible.”
The evidence was largely circumstantial. However, citing Fairmont Royal York, the Arbitrator said that sometimes circumstantial evidence is enough. “[A] case of employee misconduct can be made out by circumstantial evidence where such evidence is ‘sufficiently clear, convincing and cogent to prove on a balance of probabilities that he engaged in the alleged culpable misconduct.’ ”
That was the case here.
“It is my conclusion that in this case, the grievor’s admissions, overall testimony and video evidence, taken together, are sufficient to establish on a balance of probabilities, that the grievor did indeed take the jewellery. Having regard to the foregoing I find that the grievor did commit the theft as alleged.”
The grievance was dismissed.
Reference: Workers United Union and Winners Merchants. Norm Jesin — Sole Arbitrator. Andrea Bowker for the Union. Robert Little for the Employer. July 27, 2011. 9 pp.
