Canadian Employment Law Today

4 Canadian HR Reporter, a Thomson Reuters business 2015 All that and a bag of chips – but don't forget to pay for them Intellectually-limited worker not guilty of theft, but he compounded honest mistake by panicking and trying to come up with a story BY JEFFREY R. SMITH A n Alberta employer did not have just cause to dismiss a worker who was caught taking product for his lunch without paying for it, an arbitrator has ruled. e 60-year-old worker was hired as a courtesy clerk at a Safeway grocery store in Calgary in 1993. Hi was placed at the store through a brain injury centre, as the worker underwent two brain surgeries in the late 1960s that left him with brain damage. He had a memory defi ciency and an IQ score that was on the low end of the borderline range, placing him just slightly above what was considered intellectually disabled. As a result, the worker was able to complete Grade 9 but couldn't go further in school. Psychologi- cal evaluations determined the worker had impaired cognition and sometimes couldn't understand verbal instructions. e worker also suff ered from epilepsy and was on medication that reduced grand mal seizures but left him susceptible to pe- tit mal seizures. In addition he had reduced hearing and had to wear a hearing aid. e worker had taken personality assess- ment and psychological tests that revealed a tendency to exaggerate and deny certain problems. e worker's duties included bringing shopping carts from the parking lot into the store, cleaning the store, emptying garbage, doing price checks, bagging products at the cashier stations, and assisting customers. e store manager saw him as a competent courtesy clerk and allowed him to train new clerks. In 2000, the worker applied for a general clerk position, which had a higher pay and greater responsibilities. However, the job required a good memory and had a faster pace, and the worker couldn't handle it. As a result, he was returned to his old courtesy clerk position. Safeway had company policies on em- ployee payment for products and there were signs reminding employees to pay for product before going to the lunchroom. e worker was aware of the signs and the policies. Worker didn't pay for part of his lunch On June 2, 2013, the worker purchased food for his lunch at a self checkout till, a common practice for employees and something he had done many times before. He was able to operate the till, though he sometimes needed help if something didn't have a bar code that could be scanned. A cashier assigned to monitor the self checkout area observed the worker scan his items at the till. e worker had trouble inputting a bread roll, which didn't have a bar code to scan. e cashier helped him key in the correct code and noticed a bag of potato chips — valued at $1.14 — that the worker had put in his basket without scan- ning. He watched the worker complete his purchase and saw the worker still hadn't scanned the chips, so he reminded the worker to do so. According to the cashier, the worker began walking away with the items and the cashier reminded him twice more that he hadn't paid for the chips. e worker reportedly mumbled something like "oh yeah" but continued into the lunch room. e cashier was familiar with epi- lepsy and didn't notice any changes in the worker's behaviour that could be attributed to a petit mal seizure. After the worker went into the lunch- room, the cashier reported the incident to the store's assistant manager. e assistant manager went to the lunchroom where she saw the worker eating his lunch with an open bag of chips. e assistant manager moved beside the CASE IN POINT: WRONGFUL DISMISSAL THEFT of the employer's property is one of the most serious forms of misconduct an employee can do. It breaches the trust that is usually an essential part of the employment relationship and also strikes at the heart of the employer's business -- the ability to make money. So when an employee is caught stealing something at work, it's not surprising if serious discipline and even dismissal are the result. But theft isn't always grounds for dismissal, and sometimes what seems like theft may be an honest mistake. Mitigating factors should always be taken into consideration when it comes to determining how to deal with an employee who's taken something they should have. And if the employee has impaired mental functions, there's a good chance the bar for dismissal is extra high. What seems like theft could just be an honest mistake. Or at least if an employer can't prove otherwise, it likely can't prove just cause. BACKGROUND CREDIT: KEN WOLTER/SHUTTERSTOCK

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