Canadian Employment Law Today

6 | October 23, 2019 Cases and Trends Canadian HR Reporter, 2019 livering packages, and FedEx relied on him to perform his job with little supervision. Normally, Nieminen received packages daily from a shuttle, scanned them and placed them into his vehicle. He usually delivered all packages on the same day, but any unde- livered packages were left in his vehicle and scanned so their location could be logged. Nieminen received positive performance reviews from different managers and re- ceived recognition for his assistance and support of other FedEx employees. How- ever, the company did have some issues that it discussed with Nieminen regarding his at- tention to details, proper documentation of shipments, the importance of submitting his gas receipts and, on one occasion, overlook- ing an international package. Over the next few years, FedEx issued three letters of concern and two warning letters for various infractions related to safe driving — including not reporting an accident — and following policy on handling packages. On April 11, 2018, three packages Ni- eminen received as part of his load for the day were addressed to a credit union. He scanned the packages when he put them in his vehicle, but at the end of the day, he found an envelope addressed to the credit union that he hadn't delivered. He scanned the envelope so its location could be logged and delivered it the next morning. e following day, the assistant branch manager of the credit union discovered the envelope didn't contain foreign currency that it was expected to have. e envelope was marked as being one of three sent and only one had arrived on April 12, so the cred- it union made inquiries to FedEx. Nieminen explained that he had delivered two parcels the day before and had missed the envelope, so he had delivered it the next morning. FedEx asked Nieminen to go to the credit union to resolve the matter, telling him proof-of-deliveries had been issued for "priority boxes." Nieminen met with the credit union's as- sistant branch manager and learned that the parcels had missing foreign currency. It was still unclear what had happened to the miss- ing currency, so FedEx appointed a security specialist to investigate the missing parcels "to determine whether or not a theft had oc- curred, and if not, what the facts and circum- stances related to the missing packages were." Investigation aimed to prove theft e investigator confirmed the credit union was short 17,000 euros and 6,000 pesos and the parcels had not been mistakenly deliv- ered elsewhere. He interviewed Nieminen on April 18, but Nieminen wasn't informed that he was being investigated for theft. After Nieminen explained again what had happened with the envelope, the investiga- tor raised the prospect of a motive for theft, mentioning that Nieminen had recently pur- chased a house and his wife was on maternity leave. Nieminen advised that he came from a wealthy family that could support him if nec- essary and he hadn't even known there was currency in the parcels until he met with the credit union's assistant branch manager. After the interview, Nieminen and the in- vestigator went down to Nieminen's vehicle, where Nieminen indicated where he had found the envelope at the end of the day on April 11. After some searching, two addition- al envelopes addressed to the credit union were found in the vehicle, unopened and with their original bills. e tracking numbers on the envelopes matched those of the missing parcels, though the investigator didn't note any details of where they were found. Nieminen maintained that he didn't know what was in the envelopes and hadn't real- ized he didn't deliver them. e investigator said he didn't believe him, saying, "I'm always going to be wondering, did Erik take this and believing that you did. And that you held on to these waiting for the heat to die down. It must be my distrusting nature." e investigator also interviewed a Fe- dEx customer service representative who had handled the credit union's inquiry and confirmed proof-of-deliveries for "priority boxes" had been entered without checking with Nieminen. Nieminen was placed on investigative suspension and was interviewed a sec- ond time. At this interview, they disagreed about where the envelopes were found and Nieminen pointed out he had been told the missing parcels were boxes, not envelopes. He acknowledged that he could do a bet- ter job of going through every envelope and keeping his truck cleaner. e investigator issued an investiga- tive report concluding that Nieminen had a motive for theft because of his financial situation and the investigator didn't accept any of Nieminen's explanations. A few days later, FedEx decided to terminate Niemin- en's employment. On April 26, the company gave him a termination letter stating that "FedEx has concluded that you were deceit- ful and further had stolen or attempted to steal from FedEx representing a breach of FedEx policy 1.2, Acceptable Conduct, spe- cifically theft, deceitfulness." Nieminen appealed his dismissal under FedEx's Guaranteed Fair Treatment policy, but the managing director upheld the termi- nation, stating that his actions in the matter and the disciplinary letters he had received previously "demonstrates patterns of not following procedure as well as deceitfulness (not reporting a vehicle accident)," which cast "reasonable doubt" on his version of events. Nieminen appealed, arguing that the managing director had been told he knew what was in the envelopes, but he main- tained that he did not. He also questioned the reliance on the previous discipline for failing to report an accident — he claimed he informed management shortly after he noticed damage to his vehicle, which was a dent. However, his appeal was for naught, so he filed an unjust dismissal complaint under the Canada Labour Code. Flawed investigation e adjudicator noted that FedEx initially did not seem to think Nieminen stole the currency — the issue was raised by the in- vestigator at the beginning of the investiga- tion. e investigator adopted the approach that theft had occurred and tailored the in- vestigation to prove it. He didn't accept Ni- eminen's explanation about how the parcels were misplaced and how he looked for them, and was convinced Nieminen's financial sit- uation was a motive, even though Nieminen had explained he was secure. e investiga- tor also failed to consider the package inqui- ries and the fact Nieminen had been told they were boxes, not envelopes. In addition, the investigator told Nieminen he had "a dis- trusting nature" — not a good quality for an investigator supposed to be conducting an impartial investigation. "An investigator has an obligation to be scrupulously objective," the adjudicator said. "ere is nothing within the interviews... that exhibits objectivity. [e investigator] is aggressive, accusatory, and determined to confirm his premature assessment that Mr. Nieminen had stolen the packages." e adjudicator found the investigation was flawed, but FedEx used it as the basis for its decision to dismiss Nieminen and to reject his appeal. e company and inves- tigator predetermined that Nieminen was guilty and made the information gathered fit their predeterminations, said the adjudica- tor, adding that the managing director raised new reasons for his dismissal in the appeal review — issues that had been addressed previously through warning letters. e adjudicator determined that Nie- minen was unjustly dismissed and ordered FedEx to reinstate him to his position with compensation for lost wages. In addition, FedEx was ordered to pay Nieminen $15,000 in aggravated damages for the damage to his reputation in the Squamish community, the breach of confidentiality in the investigation and the disruption to his family life. For more information see: • Nieminen and Federal Express Canada Corp., Re (July 31, 2019), Doc. YM2707- 11440 (Can. Lab. Code Adj.). « from FEDEX on page 1 Employer and investigator predetermined employee's guilt

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