'It's a pretty high threshold [for dismissal], but theft will almost always get you there': lawyer
An British Columbia arbitrator has upheld the firing of a worker who knowingly submitted a falsified receipt for reimbursement and subsequently provided misleading information during the employer's investigation.
“It's very rare where one offense will be enough to amount to common-law just cause or similiar discipline under a collective agreement,” says Melanie Samuels, chair of the Employment and Labour Group at Singleton Reynolds in Vancouver. “It's a pretty high threshold, but theft will almost always get you there unless there's some extraordinary circumstance or misunderstanding - an employee doesn’t have to be given warnings that theft is inappropriate.”
Tidewater Midstream and Infrastructure is an energy infrastructure company for the gas processing, natural gas, petroleum refining, and renewable fuels markets. In February 2021, it hired the worker to be an “operator 7” at its light oil refinery in Prince George, BC.
The worker eventually worked his way up to an “operator 4” role at the refinery, with no discipline on his record.
The worker went on an approved unpaid personal leave of absence for family issues from April 1 to Oct. 3, 2022. When he returned, he had upgraded his power engineer certification, which granted him an annual premium as part of his compensation.
In November 2023, the worker became a chief shop steward with the union and proceeded to file 20 grievances over the next 10 months. He also emailed union members in July 2024 encouraging them to vote against renewing the collective agreement, although it was eventually ratified following negotiations.
Expense report submitted
On Oct. 25, 2024, the worker submitted an expense report of $399 for safety boots. Under the collective agreement, employees were entitled to $400 per year for safety boots. The expense report included a receipt for $380 for boots plus $19 GST.
The operations superintendent thought the expense report looked odd since it was exactly a dollar short of the limit. He looked up the boots online and saw they were $299. He went to the store in person and found the boots available for $304.
The superintendent showed the receipt to the store employee who had sold the boots to the worker, and the store employee said that the worker had told him he wanted to make the price as close to it as possible to the $400 limit and had “thrown in a couple of pairs of socks.”
Tidewater conducted a formal investigation, interviewing the store employee three times over the phone, who said he had marked up the price to meet the expense limit and added three pairs of socks – although he acknowledged that socks were included with every boot purchase. He confirmed that the online price for the boots was $299.90 and he added three pairs of socks, which cost about $25-$30 per pair.
At an investigation meeting, the worker said that the company should just change the price he submitted to $299 and suggested the discrepancy in the price on the receipt could be due to added costs of laces or insoles, but he didn’t mention socks. Tidewater suspended the worker with pay pending further investigation.
At a second investigation meeting on Oct. 30, the worker said that he had received three pairs of socks in the transaction. He denied asking the store employee to increase the price and suggested it was an error.
Termination for theft, dishonesty
Tidewater management considered lesser discipline, but they determined that the worker hadn’t been forthright despite several opportunities and hadn’t shown remorse or accountability for his actions. As a result, Tidewater terminated the worker’s employment, with the termination letter listing the following grounds: instructing a store manager to charge more for the boots, knowingly including items that weren’t covered by the boot allowance, submitting a falsified receipt, and lying during the investigation.
On Nov. 11, the union provided a letter from the worker apologizing for his actions and saying he better understood the boot policy and wouldn’t make the same mistake going forward. Management felt that the letter, coming after multiple chances to come clean, “almost felt worse than saying nothing.”
After the worker’s termination, Tidewater emailed all employees to remind them of the scope of the reimbursement for safety boots.
A short time later, Tidewater discovered that the worker had received his power engineer certification upgrade by working for a competitor during his leave of absence, which the company considered a conflict of interest and contrary to its code of business conduct.
The union grieved the worker’s dismissal, pointing to Tidewater’s progressive discipline policy and arguing that it was excessive and motivated in part by anti-union animus stemming from the worker’s union activities.
Just cause for discipline
The arbitrator agreed that there was just cause for discipline, as there was no doubt as to the worker’s misconduct - he knowingly submitted a receipt that included the cost of non-reimbursable items and failed to be forthcoming about it during the investigation. When the worker said to change the amount of the expense report to $299, it was an admission that he knew he wasn’t entitled to the amount he had claimed, the arbitrator said, adding that the dishonesty continued when he suggested insoles or laces had been included but not the socks he had actually purchased.
The arbitrator also noted that “fraud, theft, or other dishonest conduct is one of the most serious employment offenses an employee can commit” and the worker’s actions were clearly premeditated, as he had to interact with the store employee and fill out the expense form over a couple of days.
“[Tidewater] did a thorough investigation, which is what they needed to do, and they did it well,” says Samuels. “There were two problems [for the worker] - that he did it at all, and then he wasn't credible when he was asked about it - that's kind of a double whammy.”
“It was pretty blatant and it was premeditated - he knew what he was doing and it didn't seem like an innocent mistake,” she adds. “The sad thing is, at the end of the day, the worker lost his job over a minimal amount - but dishonesty is dishonesty, and it amounted to theft.”
Dishonesty
As for the worker’s apology letter, it was too little too late, according to Samuels.
“With all arbitrators, when someone does something dishonest and they’re then dishonest again in the investigation process, that's really hard to overcome,” she says. “And that's what was found in this case, that he wasn't truthful when being investigated, so accepting responsibility for his act after the fact was too late.”
Although the union argued that the termination was motivated by anti-union animus, the arbitrator disagreed, finding no pattern of discriminatory treatment of the worker and that Tidewater’s actions were consistent with its policy and previous instances of discipline for other employees in similar circumstances. In addition, the grievances filed by the worker weren’t a significant departure from usual, according to the evidence, and the worker’s email about the collective agreement may have annoyed the company but didn’t support the idea of an anti-union animus, said the arbitrator.
“If an employer is consistently applying a policy where they're always going to terminate in similar circumstances, then they're never going to have to worry about it being cloaked with anti-union animus or any other improper purpose,” says Samuels. “It was just convenient that the worker happened to have been very active in his union advocacy, but there still wasn't anything to show that [Tidewater] treated him any differently - you have to have a nexus and some concrete evidence.”
The arbitrator determined that, given the nature of the worker’s misconduct, relatively short tenure, and delayed apology, termination wasn’t excessive, even without previous discipline on his record. The grievance was dismissed.
“For employers, if you have a policy, just consistently apply it and make sure you're always approaching it the same way no matter who the employee is,” says Samuels. “Take a consistent approach and you're never going to have to worry about someone taking a run at the underlying reasons for it.”
See Tidewater Midstream and Infrastructure Ltd. v. Unifor Local 1997, 2025 CanLII 48100.
