Employer loses criminal case, but was justified in firing manager who stole from vault

Gibbons v. West Fraser Home Centre Inc., 2004 CarswellBC 1514, 34 C.C.E.L. (3d) 268, 2004 BCSC 888 (B.C. S.C.) Tony Gibbons worked for more than five years for West Fraser Home Centre Inc., a chain of home, garden and construction supply stores in British Columbia. He started as a sales clerk with the company and worked his way through the management hierarchy. One of his responsibilities, as “manager on duty,” involved securing the cash in the vault at the end of the business day and setting the alarm before leaving the store.

In May 6, 2001, a cash envelope known as the “skim” containing $1,750 went missing from the store’s secured cash area. A search of the store did not find it.

Videotapes from the store’s 16 surveillance cameras were viewed and in one Gibbons is seen picking up what is presumed to be the envelope. When he leaves the skim appears to be in the pocket of his work apron and he is seen pushing it further down.

He also is seen glancing in the direction of the security camera trained on that part of the room.

Gibbons was questioned and he claimed that while he may have removed the skim from the cash area, he had done so unknowingly and did not know what had happened to the money. Ultimately the police were contacted and Gibbons was fired.

A criminal charge against him was dismissed following a ruling that the store’s security video was inadmissible.

Gibbons, 59, denied stealing from his employer and filed an action for wrongful dismissal. He claimed he would never steal from his employer, who he planned to work for until his retirement; that he and his wife were comfortable and did not need the money; and that he knew there were surveillance cameras in the vault room so it would be foolish of him to try to remove money from it.

Gibbons filed the action because he wanted to clear his name, he said.

In ruling on the case, Justice Kathryn Neilson of the British Columbia Supreme Court noted that for an employer to be justified in dismissing an employer for dishonesty:

•the evidence must establish, on the balance of probabilities, that the employee’s conduct was deceitful; and

•the nature and degree of dishonesty warrants dismissal.

The onus is on the employer to prove just cause, noted the court, but each case must be determined on its own facts.

Gibbons’s credibility was central to his claim that he removed the money from the vault unknowingly, ruled the court, and there were aspects of his evidence that “lack consistency” with “the probabilities and practicalities of the situation.”

The court ruled Gibbons would have no reason to put the skim in his pocket rather than in the vault and then to take the money out of the vault room. He was in a management position and knew this was a serious breach of company policy. The video clearly shows him touching the skim and pushing it deeper into his pocket, the court noted.

His “furtive glance” at the video camera was also compatible with a sudden realization that his actions had been caught on tape, court ruled.

“I am unable to accept the plaintiff has no recollection of taking the money out of the vault room, or of how he disposed of it,” said Justice Neilson. “His actions are tantamount to theft, and justify dismissal.”

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