Reasonable suspicion of theft enough to justify termination

Campbell v. Wheatley, 2004 CarswellSask 423 (Sask. Q.B.)

Shelley Campbell and B&B Hydroponics entered into a written agreement of employment in February 2002 that she would work for the company for at least 40 hours per week at $13.50 per hour. The agreement was to last for at least one year.

Scott Wheatley owned B&B but his primary occupation was as a general painting contractor. He testified the working relationship deteriorated very quickly. Campbell’s work habits left much to be desired, said Wheatley, and he had a lot of difficulty reconciling inventory and the cash float always seemed to be $10 or $15 short.

Campbell was not dismissed or officially reprimanded for any of this. But Wheatley was suspicious and twice sent someone into the store to make a purchase to see how she would treat it. On both occasions she had done what she was supposed to have done.

One day Wheatley was at a store where he purchased paint supplies and he mentioned his suspicions to the manager there. It was suggested a paintstore employee should visit the store pretending to be an ordinary customer.

Sales clerk Kevin Torgerson testified he took $20 from Wheatley and visited the hydroponics store. He said he had to wait a long time for Campbell to help him, that he eventually bought something and that he waited for a few minutes after the purchase but was never given a receipt.

Wheatley testified that when he returned to the store Campbell told him there had been no customers and that later in the day there was no record of the sale to Torgerson, nor any extra cash in the till which would reflect that sale.

The next day Wheatley terminated Campbell who then filed an action for wrongful dismissal, defamation and malicious prosecution, seeking general damages and aggravated and punitive damages.

In dismissing Campbell’s claims, Justice Matheson of the Saskatchewan Court of Queen’s Bench noted employee theft is almost always just cause for termination.

The fact an employee is charged with theft is not by itself cause for discharge but as long as there is evidence on the balance of probabilities the employee committed the offence, then just cause exists.

This, said the judge, is the case even if it is an isolated act or if there is only a reasonable suspicion of a theft.

In this instance there was no way to dispute the testimony of Torgerson as he had no vested interest in the acrimonious relationship between Wheatley and Campbell, the court ruled. There was also no evidence to impugn Wheatley’s testimony that there was no record of the sale to Torgerson and no money in the till to reflect the sale.

“Thus it must be concluded, on a balance of probabilities, that the dismissal of the plaintiff was for cause,” ruled the court.

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