Items purchased by worker on employer account resold online by worker's profile
A worker’s firing for reselling items purchased on the employer’s account and refusing to participate in an investigation has been upheld by the Canadian Industrial Relations Board.
The employer was able to establish just cause, despite the worker’s lack of co-operation, with a thorough investigation, says Amy Gibson, a labour and employment lawyer at MLT Aikins in Saskatoon.
“[The employer] started out by gathering all the evidence that they could obtain independently,” says Gibson. “And I think one of the key components of their investigation is they gave the employee multiple opportunities to respond – if you have the ability to do that, it usually reflects well if something is litigated.”
The worker was a member of the Listuguj Mi’gmaq First Nation in Pointe-à-la-Croix, Que. She also worked for the governing body of Listuguj (LMG). After LMG dismissed the worker in 2005, it rehired her in 2017 to be manager of its beautification program, which offered landscaping and maintenance services in the community. Her role involved approving projects and generating work orders along with supervising all the supervisors, employees, and projects under the program.
Code of ethics
The worker’s employment agreement included a code of ethics requiring employees to use LMG equipment, property, and supplies for authorized purposes only. LMG property was also not to be used for private purposes or removed from the office without approval of a supervisor.
LMG also had a social media policy stating that employees should not make social media posts that included “proprietary and confidential company information” and that certain gross misconduct, such as misappropriation of funds of theft, would be grounds for immediate dismissal.
The worker acknowledged that she had read and understood the code of ethics. However, she later claimed that she wasn’t formally trained on financial rules that she had to follow in her role.
The worker had access to an LMG account with a local hardware store and a Canadian Tire store, which she used to purchase equipment for projects. She would sign invoices for purchases and the stores sent them to LMG, where the worker would approve them and authorize payment.
In November 2018, a member of the LMG council learned of suspicious items being purchased at the hardware store and then being put up for sale on Facebook Marketplace with the worker’s Facebook profile. The council member found what he believed to be the worker’s profile - containing photos of the worker and her family - with posts that had several items for sale such as decorations, saws, and a generator. Some of the items were available in the area only at the local hardware store, so the council member obtained copies of invoices for items purchased by the worker.
Employer investigation
Some of the invoices corresponded to items the worker’s profile was selling, so the council member emailed the LMG chief and other council members about what he had found. The interim senior director and HR director opened an investigation.
The investigation report listed several questionable purchases made by the worker with items that were subsequently put up for sale online. Most of the items were not aligned with the needs of the program.
The worker’s authority to sign invoices was suspended in late November and the interim senior director attempted to meet with her. However, the worker didn’t return her messages and letters.
Finally, a hand-delivered letter to the worker set a meeting date of Jan. 7, 2019. However, when the worker arrived for the meeting, she said she had to leave in 15 minutes to deal with a family matter. Management tried quickly to explain the issues with program expenditures, but the worker felt it was rushed and they were bullying her.
Worker missed investigative meeting
They scheduled to meet the next day, but the worker said she needed more time to get information. Management told her that it already had the documents and they just wanted her explanation. However, the worker didn’t attend the meeting.
On Jan. 21, the worker said that she was going on sick leave for two weeks, providing a doctor’s note. The HR director tried to schedule a meeting for when the worker would be back, but the worker provided another note saying she would be on sick leave indefinitely. The HR director said that they would meet to review her expenditures when she returned, and reiterated this when she provided a note extending her sick leave.
The worker agreed to meet at LMG’s office on April 23. She immediately asked if she was “fired or not,” as she had heard in the community that she was stealing money. The HR director responded that they needed to review the expenditure documents but the worker refused, became angry, and left after five minutes.
Later that day, the worker made a post on Facebook using the initials of the HR director and assistant with expletive-laden insults. LMG sent her a letter explaining what it wanted to talk to her about and that she must meet with management on May 1, her scheduled return date. If she didn’t, LMG warned that her lack of co-operation might lead to discipline up to and including dismissal.
The worker did not attend the May 1 meeting and remained off work.
Termination letter
On May 24 LMG sent the worker a termination letter citing violations of the code of ethics and just-cause policy, leading to a “serious breach of your employment contract.” However, the worker had been hospitalized the day before and didn’t learn of her termination until she was released on June 24 and LMG sent her another letter confirming her dismissal.
The worker filed an unjust dismissal complaint under the Canada Labour Code. She said she wasn’t given the opportunity to respond to the allegations and she should have been subject to progressive discipline. She also claimed LMG couldn’t terminate her employment while she was on medical leave.
The board found that LMG’s investigation led to a reasonable conclusion that the worker made certain purchases that didn’t align with program purposes and, without any explanation from the worker, she resold those items for personal gain. This was gross misconduct deserving of discipline, said the board.
The board disagreed with the worker’s claim that she wasn’t trained properly on financial rules, as she ought to have known that she was only authorized to make purchases for program purposes and, as a manager, she shouldn’t engage in behaviour that breached LMG’s trust in managing the program’s budget. In addition, she would have been aware of the seriousness of the matter when her right to sign invoices was suspended, said the board.
Employment relationship ‘not reconcilable’
The board determined that terminating the worker’s employment was appropriate as the worker “was in a position of trust and engaged in a series of actions that… were not reconcilable with sustaining the employment relationship.” The worker also failed to co-operate over five months of LMG investigating, the board said, adding that the worker didn’t show any remorse or provide credible explanations.
“I think the key for employers to remember in this case is if you have an employee who’s not willing to participate and you are looking to terminate or discipline, you have to be able to prove independently that the misconduct occurred,” says Gibson. “[LMG] did their due diligence in getting all of the invoices and cross-referencing them with all the Facebook posts, and they looked into the program and what products reasonably fit within it.”
LMG was also able to prove a significant breach of trust without the worker’s participation in the investigation, says Gibson.
“The breach of trust stemmed from [the misconduct] in and of itself and also from her continued failure to participate in the investigation process,” she says. “The employee was not apologetic whatsoever, had no plausible explanation for her actions, and refused to talk to the employer about it until the day of the hearing, so it was pretty clear for the adjudicator to see how the employment relationship was unworkable going forward.”
The board also noted that LMG’s policy manual supported dismissal without progressive discipline for misappropriation of funds and theft.
As for the worker’s hospitalization, LMG was unaware of it when it sent the termination letter. It also didn’t make the termination decision until she didn’t show up on May 1, when it expected her back after her medical leave, the board said in upholding the dismissal for cause.
When it comes to justifying dismissal over progressive discipline, the wording of the termination letter plays a key role, according to Gibson.
“The employer did a good job in this case of demonstrating breach of trust, that the worker showed no remorse, and she refused to participate in the investigation,” she says. “Make sure that you include all of the [reasons for termination], because you'll be bound to what's set out in that letter if the matter is ever litigated.”
See Martin and Listuguj Mi’gmaq Government, Re, 2023 CIRB 1066.
