Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2015 May 13, 2015 | Canadian Employment Law Today ABOUT THE AUTHOR JEFFREY R. SMITH Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.r.smith@thomsonreuters.com, or visit www. employmentlawtoday.com for more information. worker and made eye contact with him. e worker began crumpling a receipt, so she took it from him and saw it didn't include the bag of chips. She asked the worker to come to her offi ce, which was beside the lunchroom. e assistant manager waited but the worker didn't come to her offi ce. Instead, the cashier at the self checkout till saw him bring the bag of chips to the till, scan it, and pay for it. e worker said "they must not have scanned," but the cashier never saw the worker try to scan the chips the fi rst time. e assistant manager reported the matter to the senior manager in the store and went back to work at the customer service desk. Later, the worker came up to her and gave her a receipt showing payment for the bag of chips. e assistant manager testifi ed the worker seemed "upset, agitated, and a little angry" and said, "there." Soon after, the manager called a meeting and suspended the worker pending an investigation. e worker was upset and told the assistant manager "I never want to see you again." Worker's explanation wasn't convincing A few days later, Safeway investigators interviewed the worker, who had a union representative with him. e worker said he had heard the cashier say something about the chips and he turned around, but he proceeded to the lunchroom. He said when the assistant manager grabbed the receipt from him, he realized something was wrong and rushed downstairs to ask the cashier if he had paid for the chips. He also said he realized he hadn't paid for the chips "about three seconds" after the assistant manager took the receipt. e worker explained he often forgot to pay for things because he had no short-term memory and sometimes other employees would cover for him, which made him feel "ashamed and stupid." Sometimes that brand of chips had scanning issues, but when that happened the screen froze and the trans- action couldn't be completed. e worker acknowledged he was able to complete the transaction with his debit card. e investigators didn't believe the work- er's claim that he had forgotten to pay and felt his actions indicated he was aware of what he was doing. Safeway management determined the worker was guilty of theft and dishonesty during the investigation, along with breaching the company policy on employee purchase of product. ough the worker had a clean record and a long term of service, the company felt his misconduct was serious enough to warrant termination of employment. e arbitrator noted that the worker's level of intellectual functioning complicated the analysis of whether the worker was guilty of intentional theft or made an honest mistake. e worker had a low IQ, poor short-term memory and low cognitive ability, but he had a better level of verbal comprehension and reasoning that allowed him to perform the duties of a courtesy clerk, which were repeti- tive and consistent. However, the arbitrator also noted psychological evaluators deter- mined honesty and intellectual function- ing are not related; dishonesty occurs "at all points on the intellectual spectrum." As a result of the worker's intellectual level, his account of the incident in both the Safe- way investigation and in his testimony were full of inconsistencies and exaggerations. is made it diffi cult to determine between when the worker couldn't recall something and when he was using his problems "as a crutch to avoid explaining damaging events," said the arbitrator. e arbitrator found the worker's account of the incident was "not so much dishonest as it was desperate." e worker seemed not to be trying to lie, but rather trying to say the right things to get his job back, while being hindered by lim- ited cognitive and intellectual skills. e arbitrator ruled out explanations involving a scanner error or a seizure, since the worker was able to complete the transaction. at left the possibility of either an intention to steal or simply forgetting to pay. If theft was being attempted, the worker did it in plain view and didn't tried to hide it, said the arbitrator. It was also likely the worker didn't hear the cashier's further attempts to get his attention after the initial acknowledgement, since he used a hearing aid and was turned away from the cashier. ough this may have raised suspicions for Safeway, there was no way to draw a conclusion from it, said the arbitrator. e arbitrator also found the worker's ac- tions in the lunchroom — such as crumpling the receipt and going back to the till instead of the offi ce — further aroused suspicions, but could just as easily be explained as some- one with limited cognitive ability panicking as someone acting dishonestly. e worker's panic may have even been contributed to by the assistant manager, who acted aggressive- ly when she grabbed the receipt and ordered him to the offi ce, said the arbitrator. e arbitrator determined none of the actions by the worker established that he intended to steal the chips when he left the till; they could be just as easily explained by the worker's inability to deal with the situa- tion due to his limited mental abilities. In addition, Safeway didn't consult the worker's personnel fi le during the investigation that might have helped it evaluate the situa- tion. is made the investigation "seriously fl awed," said the arbitrator. Safeway was unable to establish that the worker intended to steal a bag of chips and therefore could not establish just cause for dismissal. It was ordered to reinstate the worker to his courtesy clerk position with compensation for lost pay and benefi ts. However, the arbitrator also found the worker was guilty of misconduct, though not deliberate, and he intentionally tried to thwart the investigation with exaggerations and untruths. Because of this, a two-week suspension was deemed to be appropriate discipline, with a stipulation that the worker no longer use self checkout tills upon his re- turn to work. For more information see: • Safeway Operations (Sobeys Inc.) and UFCW, Local 401 (Alleged eft), Re, 2015 CarswellAlta 614 (Alta. Arb.). about the chips and he turned around, but he proceeded to the lunchroom. He said when the assistant manager grabbed the receipt from him, he realized something was wrong and rushed downstairs to ask the cashier if he had paid for the chips. He also said he realized he hadn't paid for the chips "about three seconds" after the assistant manager took the receipt. e arbitrator noted that the worker's level of intellectual functioning complicated the analysis of whether the worker was guilty of intentional theft or made an honest mistake. e worker had a low IQ, poor short-term memory and low cognitive ability, but he had a better level of verbal comprehension and reasoning that allowed him to perform the duties of a courtesy clerk, which were repeti- tive and consistent. However, the arbitrator also noted psychological evaluators deter- mined honesty and intellectual function- ing are not related; dishonesty occurs "at all points on the intellectual spectrum." As a result of the worker's intellectual level, his account of the incident in both the Safe- way investigation and in his testimony were full of inconsistencies and exaggerations. is made it diffi cult to determine between when the worker couldn't recall something and when he was using his problems "as a crutch to avoid explaining damaging events," said the arbitrator. e arbitrator found the worker's account of the incident was "not so much dishonest as it was desperate." e worker seemed not to be trying to lie, but rather trying ited cognitive and intellectual skills. The arbitrator found the worker's testimony was 'not so much dishonest as it was desperate.'

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