Was employer justified in dismissing 62-year-old employee after 'theft'?
An arbitrator has upheld the dismissal of an Ontario grocery store worker who took money that a customer dropped and didn’t return it. Although the worker tried to explain her actions, the fact that the store had clear policies on found customer property helped the store with just cause, according to Michael Horvat, a partner in the Workplace Law Group at Aird and Berlis in Toronto.
“It’s always best to rely upon clear policies that anticipate potential issues, particularly if you're in a cashier cash environment where you want to lay down obligations to your employees so that they don't have a mistaken appreciation as to what is expected of them and what is company property,” says Horvat.
The 62-year-old worker was a meat manager at an Ontario Food Basics grocery store operated by Metro Ontario, who was hired in 2006. A short time after she started her employment, the worker signed an acknowledgement form indicating that she had read store policies, including an employee theft policy that stipulated a breach of trust would lead to termination of employment.
On July 5, 2021, the worker was on her break near the end of her shift and decided to do some personal shopping. As she was checking out her groceries in a co-worker’s checkout lane, she saw $100 on the floor of the lane next to her. She picked up the money and paid for her groceries with her debit card. She then left the store with the money and placed it in the glove compartment of her car.
At the same time, three customers in the next lane were holding up the lane because they were missing money. One of them, an elderly woman, said repeatedly that her $100 bill was missing as she had just dropped it. A cashier told the woman that she would check the store’s security cameras, but the customers left without purchasing groceries.
Security camera footage reveals worker’s actions
The store manager reviewed the security camera footage, which depicted the worker walking over to that lane and picking up money off the floor while the customers were standing close by. She then returned to her checkout lane and left.
This was concerning for Metro because it had an expectation that employees must turn in customer property that is found in the store, a practice known to employees. If it’s anything of value, they had to advise management, who could put it in a safe. The worker herself had previously found purses, money, and credit cards in the store and handed them into the cash office.
The next day, the worker reported for her shift but she left the money in her car. She was called into an investigation meeting with a union steward present. A loss prevention investigator advised that she had begun an investigation into a customer’s missing money.
The worker acknowledged picking up $100 and said that she intended to turn it in but forgot about it. They went to her car, where the worker removed the money from the glove compartment and handed it to the investigator.
The worker said that she didn’t know who dropped the money and if the customers in that lane had asked for it, she would have given it to them. She also explained that she didn’t alert the cashier for that lane because she didn’t really know her. She claimed that she told the cashier at the checkout she was using, but that cashier denied being told about the money.
Metro suspended her and sent her home.
Giving a free case of pop to a customer was serious misconduct for a grocery store cashier but not a fireable offence, an arbitrator ruled.
Proper investigation into workplace theft
The company handled the matter properly when faced with evidence of employee theft, says Horvat.
“[Metro] engaged in a proper investigation with respect to an issue that was raised by a customer and an employee, it had the tools available to it with respect to cameras in the workplace, and those cameras were utilized for the purpose in which they were installed - to deal with customer safety or security and protection of the grocery store’s assets,” he says. “And it then engaged in discussion and investigation with the individual and allowed them the opportunity to come forward.”
The company considered that the worker didn’t turn in the money on the day she picked it up, despite the fact that she had multiple opportunities to do so before she left the store. She also didn’t bring the money with her when she returned the next day, and her answers in the investigative meeting were inconsistent. The company determined that the worker intended to keep the money and terminated her employment for breach of trust on July 8.
The union grieved the termination, arguing that the worker always intended to return the money and there was no basis for discipline. It also said that, alternatively, it was a temporary lapse of judgment in failing to follow the process for turning in the money and termination was excessive for an employee with long service and no prior discipline.
The arbitrator found that the worker didn’t ask any customers or tell any cashiers about the found money, even though they were close by, and she knew the procedure for turning in found customer property. She had several chances to turn it in, as she was in the store for awhile after and walked past the cash office, the arbitrator said.
The arbitrator also found that it was unlikely that she would forget to hand it in the next day when she returned, as it was a significant amount of money.
A Manitoba employer’s inconsistent system for handling money was not a basis to pin missing funds on an employee, an arbitrator ruled.
Breach of trust by worker
The arbitrator determined that the worker engaged in “very serious culpable misconduct” that constituted a breach of trust by picking up a customer’s money with no intention of returning it. She created “a circumstance that no customer should experience,” said the arbitrator.
Despite the fact that the worker had a lengthy period of service with no prior discipline and was 62 years hold, there was no reason to believe that she had “rehabilitative potential to re-establish the broken trust with the employer,” given that she showed no remorse, said the arbitrator in dismissing the grievance.
Employee theft is particularly serious when it occurs in a retail environment with customers involved, says Horvat.
“At the end of the day, even if she hadn't been in uniform and this had had come out, it would have brought the company into disrepute,” he says. “The customer would have had a justifiable concern that an employee of this location took and did not return her money - if that gets onto social media or in the press, all of a sudden this location looks very poor and people can make business decisions not to shop there.”
“Especially in grocery stores where 30 years of case law has established the extremely low threshold for demonstrating theft in the workplace because they are typically environments that have available product that is easily taken and a lot of cash, cashiers have the utmost obligation of honesty and transparency,” adds Horvat. “And if they fail to meet it, an arbitrator is not going to back them up.”