Canadian Labour Reporter

November 8, 2021

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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"making bedding purchased from the company available for re-sale." The worker signed an acknowl- edgment of the policy in 2001, a year after he was hired. The purchase policy didn't refer to CCRs, which were cus- tomer warranty returns of bed- ding product. CCRs didn't carry a warranty and were deemed to be used product. However, there was an unwritten policy limiting em- ployees to three CCR purchases per year as part of their five annu- al purchases. CCRs were stored in the finished goods area and the "law tag" — a unique identifica- tion number sewn onto the mat- tress or box spring that is required by law — was removed so the war- ranty could be voided in the com- pany database. On Nov. 25, 2017, another employee was on his phone dur- ing a break and checked a local marketplace group on Facebook. He noticed an ad for Simmons mattresses for sale with a 10-year warranty that included photos that appeared to have been taken inside the Simmons plant. He showed the ad to his supervi- sor, who was able to make out a law tag number by zooming in on one of the photos. He entered the number into the database and the purchase order number identified the worker as the pur- chaser. A senior operator entered the phone number from the ad into his phone and the worker's name appeared from his contacts. An- other employee recognized a sec- ond number in the ad as belong- ing to the worker's brother. Simmons conducted an inves- tigation that included interviews with the employees who saw the ads and recognized the phone numbers. It found that the pic- tures in the ad traced back to the worker and the Facebook profile that created the ad belonged to the worker's son. Simmons terminated the worker's employment on Dec. 1 for breaching the purchase policy and the code of business conduct and ethics. The worker claimed that he had conformed to the purchase policy with five bed- ding purchases in 2017, including three CCR sets. He denied offer- ing them for resale. The union contested the dis- missal, arguing that the advertise- ment wasn't under the worker's name and there was no evidence that he took the photos or placed the ad. In addition, there was no evidence of an actual sale at the time of the worker's termination, said the union. The arbitrator noted that the purchase policy emphasized that employee purchases were for per- sonal use only and the worker, as an experienced employee, under- stood the policy. The undisputed evidence was that the law tag on one of the mattresses was from a purchase that the worker made and his own cellphone number appeared in the ad with photos taken in the Simmons plant. This evidence was strong enough to conclude that the worker was linked directly to the attempted resale of bedding product from the Simmons plant, said the arbi- trator. The arbitrator also noted that the worker was aware of the ads, but he didn't report them or that he received any calls related to them. The arbitrator found that the worker attempted to compete with Simmons by posting ads on- line with the intention of selling company product at a profit. His denial proved that he couldn't be trusted to follow the policy in the future, said the arbitrator in dis- missing the grievance. Reference: Simmons Canada and IUOE, Local 955. John Moreau — arbitrator. April Kosten, Sara Sobieraj, Sophie Lorefice for employer. Murray McGown, Arielle Sie-Mah for employee. Aug. 27, 2021. 2021 CarswellAlta 2104 to become available. On Sept. 12, he intended to take two more rugs home. According to the coworker, the worker said that he had pur- chased two rugs himself and of- fered to help the coworker load his into his car. In his own interview, the worker said that he had seen the coworker's purchase slip for four rugs and helped him load four rugs into his car. He didn't men- tion that he had transferred two of the rugs into his own car and provided no explanation as to why. The supervisor on duty on Sept. 12 said that he was aware that the coworker had purchased four rugs and he intended to take the remaining two that day. He wasn't aware of any purchase made by the worker or that the worker intended to take two rugs for himself. After the interviews, the in- vestigators determined that the worker had removed the rugs without authorization or expla- nation. Multy Home terminated his employment for theft. The union filed a grievance claiming that Multy didn't have just cause for dismissal. The worker then claimed that he had thought all four rugs were part of his coworker's purchase and the coworker offered him two of the rugs in exchange for his catering business supplying the coworker's family with a ca- tered lunch. He claimed that he hadn't provided this explana- tion in the investigative inter- view because he had been ac- cused of theft and "all he could do was reiterate that he did not steal any rugs." The coworker denied making any arrangement with the work- er for catering and said that he didn't even know the worker had a catering business. The worker didn't deliver any catered food to the coworker after the inter- views, but he gave the rugs to a friend visiting from Jamaica. The union claimed that the worker didn't return the rugs because he hadn't been asked to and he had been told not to come back to Multy Home's premises. The arbitrator acknowledged some problems and inconsisten- cies with the coworker's account of the matter — such as why he didn't ask to see the worker's purchase order before loading the two additional rugs into his car — but found that this didn't change the fact that the worker took two rugs for himself from the warehouse without autho- rizing or paying for them. The explanation that he took them from the coworker in exchange for catering services wasn't cred- ible, particularly since he would have been aware following his in- terview that the coworker didn't have the authority to offer the rugs to him. However, he didn't offer to return them or pay for them. "The only conclusion to be drawn is that the [worker] com- mitted theft of the two rugs and refused to acknowledge his wrongdoing," the arbitrator said in dismissing the grievance. Reference: LIUNA, Local 183 and Multy Home. Norm Jesin — arbitrator. Michael Horvat for employer. Andrew Black for employee. Aug. 25, 2021. 2021 CarswellOnt 11968 Stealing from warehouse proved just cause for termination Offering bedding sets for sale breaches policy; worthy of firing

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