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Issue link: https://digital.hrreporter.com/i/1426262
"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