The grievor was fired after he was charged criminally for taking supplies from his employer and selling them. The arbitrator found that the bond of trust had been broken by repeated thefts. They outweighed his long service and current economic hardship.
A long-service worker was fired for theft following a tip-off that he was selling cleaning supplies that he had stolen from his employer.
W.G. worked as an Environmental Services Worker at a hospital in Campbellton, N.B., part of the Vitalité Health Network. He performed custodial and janitorial work, removing garbage, cleaning rooms and waxing floors. W.G. began as a cook’s helper but later transferred to housekeeping.
W.G. had 34 years’ service when he was fired in November 2010. W.G. was not a model employee. His employment record was characterized by absenteeism and poor performance. A number of harassment complaints against W.G. were also on record. W.G. was terminated in 1999 for poor performance. He was later reinstated.
On Oct. 7, 2010, M.L. — a human resources officer for the employer — became aware of allegations that W.G. was stealing cleaning supplies from the stockroom and then selling the merchandise at a discount.
The next day, M.L. learned that W.G. had met with the employer’s benefits co-ordinator to make arrangements for early retirement.
The employer undertook to investigate the allegations and then notified the police.
Charged with theft
W.G. was suspended with pay on Oct. 18. About 10 days later — after being informed that a police investigation would take several months to complete — the employer hired a private investigator. (W.G. was eventually charged with theft under $5,000. He was tried in Provincial Court on Nov. 16, 2011 and convicted. W.G. was sentenced to four months in jail and 18 months’ probation.)
The investigator identified seven people who were willing to testify that they had bought supplies from W.G.
The employer met with W.G. to discuss the allegations on Nov. 16, 2010. W.G. denied committing serial thefts, but did admit to taking supplies on one occasion.
The employer judged the results of its own investigation to be more credible than W.G.’s denials. The employer concluded that the evidence showed that W.G. had engaged in premeditated acts of theft over a long period of time.
W.G. was fired. The union grieved.
The union acknowledged that there was cause for discipline but argued that termination was extreme in the circumstances. W.G. was a 34-year employee who faced losing his retirement benefits if the termination was upheld. The union conceded that W.G. was not a “model” employee but suggested that the employer bore some responsibility for its failure to properly manage W.G.
The Arbitrator upheld the termination.
The Arbitrator acknowledged that theft is no longer necessarily considered to be an irreparable breach of the duty of trust and good faith that an employee owes to his or her employer. The question in each case is whether or not the employment relationship can be restored. That determination is made after an assessment of the personal characteristics of the grievor, the nature of the misconduct and the employer’s policies against theft.
In this case, the union urged the Arbitrator to balance W.G.’s long service and the prospect of economic hardship against his offence.
It wasn’t enough, the Arbitrator said. In light of information showing multiple thefts over a period of time, it was not unreasonable for the employer to conclude that the necessary bond of trust in the employment relationship had been irrevocably breached, the Arbitrator said.
“Needed a couple of dollars”
“The subject offence is serious. That it was premeditated cannot be doubted. W.G. testified that he took the cleaning supplies because he ‘needed a couple of dollars.’ At no point in the testimony did he even suggest a spur of the moment decision. W.G. acknowledged two acts of theft but the record of conviction supports the employer’s position that he engaged in another unacknowledged act or other unacknowledged acts of theft.”
W.G. was neither candid nor contrite, the Arbitrator said. His testimony was not credible.
“Quite frankly, I did not consider his testimony to be credible based on the inconsistencies noted above as well as his demeanour, lack of candour, and lack of logical consistency. He presented himself as a victim rather than as a perpetrator. He focussed on the impact of the employer’s disciplinary action on himself and not on any impacts of his conduct. His single expression of regret/remorse was pro forma. He did not ‘come clean’ even at the grievance hearing.”
The Arbitrator rejected the union’s assertion that the failure of W.G.’s supervisors to complete performance evaluations for him after his 1999 return to work could be counted in any way as a failure to properly manage W.G. and therefore as a contributor to his misconduct.
W.G. knew that stealing cleaning supplies was wrong.
The grievance was dismissed.
Mark Rogers is a writer and editor who specializes in labour relations and occupational health and safety.
