Canadian Employment Law Today

August 21, 2013

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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CELT August 21 2013:celt 467.qxd 13-09-16 9:50 AM Page 3 CANADIAN EMPLOYMENT LAW TODAY Metro cuts 'grazing' employee loose Employee's explanations for violating company's anti-theft policy not credible; termination upheld by arbitrator | BY JEFFREY R. SMITH | AN ONTARIO grocery store chain had just cause to dismiss an employee who was caught stealing food from her store's bakery and deli sections, an arbitrator has ruled. Silvana Lazzaro, 44, part-time employee with 21 years of service with Metro Ontario, a grocery store chain. Lazarro worked in various departments without any disciplinary record and by 2011 worked JUST in the cut fruit section of a busy store. Metro had detailed policies in place regarding employee purchases and theft of product. The anti-theft policy made it clear that taking any product without paying for it was prohibited and the company considered it serious misconduct. The policy stipulated termination of employment would likely result for employee caught stealing product. Metro's employee purchase was similarly detailed, outlining the rules for employees buying store items – it had to be outside their working hours or during hours the store was closed, and another employee had to process the sale at a regular retail station. Employees were informed of both policies and regular reminders were posted in several locations in each Metro store. Lazarro was familiar with the policies and received a booklet containing them when she was hired. However, she claimed her store manager was lax about enforcing them and said he often allowed employees to "graze" – eating extra or damaged product while in the store. However, in November 2011, the store received new managers who were more strict about enforcing all company policies. In early 2012, the company found the deli department in Lazarro's store were below expectations. At another store, the company had solved a similar problem by installing covert cameras that captured employees stealing product. Those employees were fired and the store's financial results improved, so Metro installed covert cameras in Lazarro's store on Feb. 7, 2012. Video cameras installed About a month later, Lazarro told her store's co-manager that a co-worker had "reduced cold cuts" that she bought from the deli section. The co-manager reported this CAUSE to Metro's loss prevention officer, who came to the store and reviewed the videotapes from the security cameras. She saw the incident in question and Lazarro's co-worker was terminated. The loss prevention officer interviewed other employees and Lazarro was implicated in other instances of product theft. When interviewed, Lazarro said "it's nothing new, it's always been going on" but denied any dishonesty. She was suspended pending further investigation and the officer continued watching videotape footage. The footage showed four incidents on four different days in February 2012 were Lazarro ate or took product she didn't pay for: adding cookies from a baking tray to a package she purchased and taking some in her hand; entering the bakery preparation area eating something that resembled a cookie; receiving six deli turkey slices that were weighed packaged and labeled by a coworker but hiding them under her purse at checkout; and paying a reduced price for buns packaged and labeled by a coworker, plus taking a turnover from a bakery tray. 13 employees fired for 'grazing' In all, the video cameras captured 13 employees "grazing," which Metro considered a breach of trust and a violation of its policies. In addition, the company believed if it allowed employees to consume extra or damaged product, it would lead to the product of excess product or intentional damaging of product. 11 of the employees – including Lazarro – were fired. The other two were dismissed but reinstated with alternate discipline because they were new and it was believed they were unfamiliar with company policies. Lazarro was terminated on March 27, 2012. Lazarro grieved her termination, arguing Metro policies weren't enforced under the previous manager and she never thought taking extra cookies and such was contrary to Metro's policies. It wasn't fair to be so harsh so soon after the managerial change, she said. As for the four incidents on videotape, Lazarro had explanations for each: the cookies she took were from the "extras" rack that weren't going to be sold and one of the co-managers saw and even took one, but other employees reported there was no "extras" rack; in the second incident, she was on a break and eating something she carried from elsewhere. In the third incident where she didn't pay for turkey slices, Lazarro produced a lengthy explanation that she didn't use her change to purchase the slices because she wanted to buy Tassimo coffee disks to drink with her son who was leaving in a few days. She said she had never purchased them before, but evidence showed she had done so on at least four previous occasions. When confronted with this fact, Lazarro said she had purchased the disks for someone else. In addition, she said the turkey slices were too expensive but she couldn't give them back to her co-worker because they were already sliced. For the fourth incident, Lazarro claimed her co-worker must have incorrectly priced the buns and she didn't check. However, the arbitrator didn't Published by Canadian HR Reporter, a Thomson Reuters business 2013 Continued on page 6 3

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