Tribunal rules shift change over theft suspicion wasn't constructive dismissal
A grocery and produce company that moved a long-serving night shift supervisor to days after suspecting theft did not constructively dismiss him, an appeal tribunal has ruled, wiping out part of a wage award the company had been ordered to pay.
The British Columbia Employment Standards Tribunal released the decision on July 28, 2026, in an appeal by Fruiticana Produce Ltd. of an earlier order to pay a former night shift supervisor for overtime, vacation, statutory holiday pay and length of service. Member Richard Grounds allowed the appeal in part, setting aside the length-of-service award while confirming the rest.
A schedule change that wasn't a dismissal
The worker had run the night shift at one of the company's Surrey warehouses since November 2005. In July 2023, the company told him to switch to days. He stopped showing up, and that December he filed a complaint alleging he had been constructively dismissed and was owed unpaid overtime.
An adjudicating delegate of the Director of Employment Standards, Felisa Friesen, sided with the worker in an April 2025 determination. Because he had worked nights for more than 18 years, she found, the move to days was a fundamental change to his terms of employment, and she concluded he had been dismissed rather than having quit.
On appeal, Grounds found the delegate had looked only at the worker's long history on nights while failing to consider why the company acted. The employer had reassigned him over concerns he was taking company product, and Grounds concluded the delegate had left those concerns out of her analysis. Of the delegate's view of the facts, Grounds wrote: "This view is artificial and factually misleading."
Supervisor or manager?
A separate question was whether the worker had been a manager. The determination that he was not one was the basis for finding him owed overtime and other unpaid wages. The company argued he supervised night staff, checked the accuracy of warehouse orders, could discipline employees and had input on hiring and firing.
The delegate found he was closer to a lead hand than a manager. It was undisputed that he did not hire or fire anyone, and there was no evidence he had ever actually disciplined staff. Grounds upheld that finding, noting the same duties could point either way and the delegate's conclusion was reasonably supported by the evidence.
With the worker classified as an employee rather than a manager, the tribunal confirmed the amounts calculated from the company's payroll records: $9,858.09 in overtime, $4,364.04 in statutory holiday pay and $1,275.73 in vacation pay, along with mandatory penalties for the breaches.
How much proof a theft suspicion needs
The reassignment traced back to suspicion that the worker was stealing. The company pointed to reports from other employees, two cell-phone videos shot off a warehouse security monitor, and four photographs said to show company product in his lunch bag. None of the footage carried metadata confirming when it was captured.
The worker denied taking anything. He said the lunchroom video showed him retrieving blood-pressure medication, that the parking-lot clip showed him lending tools to a coworker, and that anyone could have accessed his bag and photographed it with product inside. The delegate gave the material little weight and found the company's witnesses even less reliable.
Grounds found the delegate had effectively required proof beyond a balance of probabilities, demanding the company show how the worker obtained product and rule out that it was planted. Hearsay from coworkers was not disqualifying, he added, finding that "this type of hearsay information is quite sufficient to raise concerns." Grounds did not decide whether theft had occurred, finding only that the employer's concerns were genuine and the reassignment a reasonable response. On that basis the shift change did not amount to a dismissal, and the length-of-service award fell away.
