Video footage, worker’s lack of convincing explanation enough to meet just cause standard
The Ontario Superior Court of Justice has upheld the firing of a worker for theft, finding that it was reasonable for an arbitrator to determine that the worker was complicit based on video surveillance footage and the worker’s failure to explain his actions.
Multy Home is a company that manufactures and sells rugs and flooring, based in Concord, Ont.
On Sept. 12, 2020, a worker for Multy removed four rugs from the shipping area. With the help of other employees, he put the rugs in a co-worker’s car and drove the car to the far end of the parking lot. He then transferred two of the rugs into his own car. All of this was captured by video surveillance cameras.
Multy management interviewed the worker and the co-worker, and the latter said that he had previously ordered and paid for four rugs. He said that he had already received two rugs and on Sept. 12 he was picking up the remaining two.
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Co-worker responsible: worker
According to the co-worker, he asked the worker for help and the worker offered to load the rugs into the co-worker’s car, adding that he had purchased two rugs himself.
The worker said in his interview that he told the co-worker that he had loaded four rugs into the co-worker’s car, in accordance with the co-worker’s receipt indicating four rugs. He didn’t say that he had transferred two of the rugs into his own car.
Multy management determined that the worker had removed two rugs from the shipping area without authorization and terminated his employment for theft of merchandise. After the firing, the worker said that he had a part-time catering business and the co-worker offered to sell him two of the rugs in exchange for a catered lunch of Caribbean pork for his family.
The union grieved the dismissal. In the hearing the co-worker testified that he did not know that the worker was a caterer and he would not have agreed to a meal that included pork because he was Hindu. He had eaten food that the worker had prepared at a company barbecue, but he maintained that he wasn’t aware that the worker had a catering business.
The worker argued that it was the co-worker who stole two rugs but taking four instead of two under false pretenses and then bartered two of the rugs for a catered meal.
A federal arbitration decision indicates that employee theft may not necessarily be cause for dismissal, but lying about it will be.
Worker took two rugs
The arbitrator determined that, based on the video surveillance evidence and the contradiction between the accounts of the worker and the co-worker, that the worker did not credibly explain why he took two rugs. The arbitrator upheld the worker’s dismissal for theft.
The union sought judicial review of the arbitration award, arguing that the arbitrator based the decision on “an arbitrary determination” of the worker’s credibility and improperly considered that the worker had never returned the rugs or offered to pay for them – the latter was extraneous, after-the-fact evidence that could not be used to assess the termination decision at the time it was made. The union also claimed that the arbitrator misapprehended the burden of proof in cases of just-cause termination and made “erroneous factual conclusions.”
The court found that the arbitrator’s finding that the worker lacked credibility was not arbitrary and based on the evidence and his belief on whether the worker was complicit in taking the rugs – it was within his discretion to accept the co-worker’s evidence over the workers.
The court also found that it was reasonable for the arbitrator to consider the worker’s failure to return the rugs or offer to pay for them in assessing the worker’s credibility. The worker knew that the rugs had been stolen at the time that management interviewed him, so keeping them at that point was dishonest and could give rise to the inference that he intended to steal them, said the court.
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Employer proved just cause
In addition, the arbitrator did not misapprehend the burden of proof and made no unreasonable findings of fact, said the court. Multy established the theft will the video footage, which was “clear, cogent, and compelling evidence” that the worker acted dishonestly, and the worker did not provide an adequate explanation for his actions in his interview, said the court.
The court determined that the worker’s version of events was “far-fetched, implied bizarre and dishonest conduct by another employee” and the worker did not explain why he didn’t admit to putting two rugs in his car in his interview. Combined with the fact that the worker didn’t return the rugs once he knew they were stolen, it was reasonable for the arbitrator to find that the worker was complicit in stealing the rugs, said the court in dismissing the application. See Labourers’ International Union of North America, Local 183 v. Multy Home LP, 2023 ONSC 747.
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