Ontario worker's firing for theft, denial upheld by arbitrator

'There tends to be an assumption that somebody with many years of service or a medical condition is untouchable'

Ontario worker's firing for theft, denial upheld by arbitrator

There are few things an employee can do that are more serious than theft, according to Sharaf Sultan, principal of Toronto employment law firm Sultan Lawyers.

Throw in some dishonest denial and you’ve got a recipe for getting fired, as a recent Ontario arbitration decision found.

“With cause for termination, the question is: Does it go to the heart of the relationship? Does it fundamentally breach the relationship?” says Sultan. “Theft is serious and that's why I think it’s among the most serious [forms of misconduct] to overcome.”

Read more: Theft is one of the most aggravating forms of employee misconduct, but there are several factors to consider in determining if it’s just cause, writes another employment lawyer.

The 54-year-old worker in question was hired in 2012 as a full-time unit aide in the emergency department of Humber River Hospital in Toronto.

On June 30, 2021, another hospital employee observed the worker putting hospital supplies from the emergency department’s supply room into her personal bag and concealing them with her belongings. She was later seen leaving with them still in her bag, before the end of her shift.

Three days later, on July 3, the worker was again seen placing hospital supplies into her bag and then leaving early.

The worker’s activities were reported to the hospital, which held an investigation meeting on July 14. When management told the worker what other employees had seen, she denied it and accused a co-worker of giving her the supplies.

The worker also said that she was sad because she had never been accused of theft before, but she had nothing else to say. Management then showed her video surveillance footage of her taking large rolls of paper towels from the supply room and putting them into her bag, to which she replied that she had asked a housekeeper for them. She claimed that she had asked the housekeeper for paper towels before, but that had been the first time that she had taken them home.

The housekeeper denied ever giving the worker paper towels and expressed disappointment that he was mentioned in connection with the theft of supplies.

Termination after video surveillance

On July 29, the hospital terminated the worker’s employment. The termination letter identified both the June 30 and July 3 incidents, the fact that the worker left early on both days, and her dishonest denial of theft even after viewing the video surveillance footage.

The union argued that the termination was excessive. The worker acknowledged taking the paper towels but denied being dishonest, as she claimed she was confused about the kind of supplies she had been asked about and didn’t realize the investigation was related to the paper towels.

The worker also said that she didn’t realize what she was doing at the time and was concerned about the supply of paper products during the pandemic. She also said that she was receiving treatment for mental health issues from past domestic abuse and she would never steal again.

The worker supplied a medical note from January 2022 stating that she had symptoms consistent with generalized anxiety disorder. It also indicated that the worker felt “profound shame and repentance” and it was “a moment of emotional crisis.” The union argued that the worker admitted to her misconduct, expressed remorse, offered to reimburse the employer, and had documented medical conditions.

The arbitrator noted that the worker had nearly a decade of service with the hospital, the supplies she stole weren’t valuable, and she expressed remorse and regret after the fact. It was likely there was “a strong prospect for good behaviour going forward,” said the arbitrator.

The worker’s length of service was the strongest factor in favour of reinstatement, as a longer tenure can bring more credibility, but the relative low value of the stolen paper towels wasn’t a consideration, says Sultan.

“If you're talking about trust, you really shouldn't be taking anything at all,” he says. “If you take something of major value, I suppose it's more serious, but I think the baseline is pretty high regardless of what you take because, again, it's about trust.”

Continued denial of misconduct

It was difficult to justify the worker’s initial denial that she had taken the supplies, as well as her continuing denial that she was dishonest during the investigation, said the arbitrator. Her argument that she was confused did not hold up to the investigation record and her explanation involving the housekeeper didn’t add up — as well as unfairly implicating another employee.

Although the worker admitted her conduct and offered to pay for the paper towels by the time of the hearing, she had several opportunities to do so during the investigation meeting. There could have been no confusion by the end of the meeting that she wasn’t entitled to take any supplies, said the arbitrator.

Read more: An Alberta worker’s extended period of time theft and lying about it outweighed his years of good service, according to an arbitrator.

The worker’s attempt to blame her misconduct on her medical condition without better evidence likely sealed her fate, says Sultan.

“They didn't buy the medical angle to it, because one of the things that the arbitrator noted was that the medical evidence did not indicate the [worker] suffered from an emotional or psychological condition that prevented her from appreciating the wrongfulness of the actions,” he says. “What they were basically saying is, ‘We don't genuinely believe that you didn't know it was wrong and had you been more forthright about the fact that it was improper, there may have been a hope to re-establish trust.’

“But I think the issue with theft is that it makes it extremely hard to re-establish trust, because trust is fundamental between employers and employees.”

Even though there was a good chance the worker wouldn’t repeat her misconduct, the arbitrator determined that the employment relationship was damaged beyond repair.

“The [worker] could not expect that repeated thefts of even low-value hospital supplies would not jeopardize her relationship with the employer,” said the arbitrator in upholding the termination.

When it comes to serious misconduct by an employee that strikes at the heart of the employment relationship — such as theft and dishonesty — a lengthy service record or a disability unrelated to the misconduct doesn’t necessarily protect an employee from just-cause termination, according to Sultan.

“There tends to be an assumption that once somebody has many years of service or possibly has a medical condition, that they're untouchable. But I think one of the messages [from this decision] is years of service and medical condition are not insurmountable when it comes to determining whether somebody’s conduct reaches the level of just cause, whether it be union or non-union. It doesn't provide gold-plated protection.”

See Humber River Hospital and National Organized Workers Union (AB), Re, 2022 CarswellOnt 1723.

Latest stories