7 stolen TV sets, and nothing on (Legal view)

Worker ordered to pay employer $35,000 for stolen property

An arbitrator has ordered a shipping company employee to pay his employer nearly $35,000 for his involvement in the theft of television sets.

Wayne Spence was a dock person for Canadian Freightways in Calgary. He worked the 3 a.m. to noon shift with little supervision, offloading trailers from big shipments and reloading for local delivery.

In October 2005, a shipment of Samsung television sets was short 20 units. Canadian Freightways had to pay more than $40,000 for the sets and another $8,000 for an investigation. In November 2006, 21 Hitachi sets worth more than $43,000 went missing. The company spent almost $20,000 investigating this loss. A month later, a shipment of generators out of Calgary was also short two units.

In December 2006 and January 2007, Canadian Freightways and the Calgary police received calls from one of Spence’s neighbours saying he saw several company crates being taken in and out of Spence’s house. This was corroborated by another neighbour who saw seven television-sized boxes in Spence’s truck.

TVs found in worker’s home

Police obtained a search warrant on Jan. 25, 2007, and found three Hitachi sets and one Samsung set, all matching those stolen. Two of the sets were still packaged in crates in Spence’s garage, alongside a generator that matched the two stolen.

After confirming the items were all Canadian Freightways’ property, the police charged Spence with theft and possession of stolen property.

Spence claimed a co-worker had sold him the items from an auction of damaged goods. Though he pled guilty to possession of stolen property in January 2008, he claimed he didn’t know the items were stolen.

He knew the Samsung set was Canadian Freightways property and the co-worker had been under suspicion and suspended after the 2005 theft, but he said he thought the set was obtained legitimately.

He denied being involved in the theft and said he didn’t know the Hitachi sets were company property until the police showed up. He also said the boxes seen in his truck were home renovation materials.

Canadian Freightways filed a grievance seeking damages for theft of company property or, alternatively, for Spence failing to live up to his duty as an employee to inform it of the stolen property.

The arbitrator found it unlikely Spence didn’t know the televisions and generator were his employer’s property. The investigations would have made him aware of the thefts and all of the shipments were in the Calgary yard at some point during his shifts.

His claim they were from an auction of damaged goods also didn’t ring true, as two sets and the generator were still packed in their crates and he pled guilty to the charges of possession of stolen property.

“These facts lead me to the inescapable conclusion that Spence knew these goods came from a shipment of the employer and was stolen property,” said the arbitrator.

The arbitrator also found Spence’s claim the boxes his neighbour saw in his truck were renovation materials to be unlikely, since he was seen taking some away from his house as well. Without a credible explanation and given the police found four of the sets in his house, the arbitrator ruled these packages were all stolen sets.

Worker breached duty to employer

However, though Spence was in possession of some of the stolen items, there wasn’t sufficient evidence to determine he stole all 41 missing sets. The arbitrator found there was enough evidence to put him on the hook for seven sets, whether he stole them or not.

“It matters not whether he stole the goods or came into possession of them from the thief,” said the arbitrator. “His conduct was dishonest and a breach of trust and his duty of fidelity to his employer.”

Though Spence had one set from the theft of Samsung televisions, the arbitrator found there wasn’t enough evidence to prove his involvement. However, his possession of the Hitachi sets was enough to prove his involvement with their theft and as a result he was liable for the investigation costs, which were $19,961.39, plus the more than $9,000 Canadian Freightways lost from the theft of the Hitachi sets.

Spence was ordered to pay Canadian Freightways compensatory damages of $29,285.52 plus $5,000 in punitive damages for his “reprehensible conduct, dishonesty and breach of his duty of fidelity.”

For more information see:

T.F.I. Transport 7 L.P., Transforce Administration Inc. and 4186937 Canada Inc., doing business as Canadian Freightways v. Wayne Bruce Spence (Apr. 25, 2008), David G. Tattensor — Arbitrator (Can. Arb. Bd.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a sister publication to Canadian HR Reporter that looks at employment law from a business perspective. For more information, visit employmentlawtoday.com.

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