Canadian Employment Law Today

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GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations @thomsonreuters.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: Karen Lorimer Publisher: John Hobel Managing Editor: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2015 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Was dismissal justifi ed? OR Was lesser discipline more appropriate? IF YOU SAID dismissal was justifi ed, you're correct. e arbitrator found the worker had to have been aware of the policy, as he had reviewed it and signed a document saying so. He knew that giving the discount card to his friend would be risking immediate termination, but he did so anyway. He also acknowledged in his interview with the loss prevention department that he was aware of the policy. In addition, he didn't retrieve the card from her, so he "facilitated her inap- propriate use of that card on an open-ended basis, as she saw fi t," said the arbitrator. e arbitrator also found the worker wasn't honest about the incident being an example of poor judgment. e fact they were in line together and went to diff erent registers and the fact she knew about his dis- count card showed it was likely preplanned. e worker's account of whether she was a close friend or not was also inconsistent. e holes in the worker's story showed he tried to mislead the investigation. "Given (the worker's) understanding of the potential consequences of termination for violating the policy, I fi nd it improb- able that he would spontaneously give (the friend) his discount card to use on an open- ended basis as she saw fi t, unless she was a suffi ciently close friend, and unless there was prior discussion between them, about giving his discount card to her," said the arbitrator. e arbitrator also noted the worker's statement that "now I am aware of the dis- count policy" was an attempt to mislead the investigation and protect himself with an- other falsehood. e arbitrator determined the employee "has engaged in a serious breach of trust undermining the integrity of the company's policy, which relies on employee honesty and compliance." His dishonesty and lack of forthrightness in the investigation under- mined the trust necessary for a continuing employment relationship, said the arbitrator in upholding the dismissal. For more information see: • Winners Merchants Intl. LP and Workers United Canada Council, Local 152 (Mann), Re, 2014 CarswellOnt 12968 (Ont. Arb.). Worker overplays his employee discount card THIS INSTALMENT of You Make the Call features a worker who gave his company dis- count card to a friend. e 64-year-old worker was hired to work as an associate in a Winners International store located in Ontario on Sept. 27, 2004. When he was hired, he signed a document outlining the company's discount policy, which entitled employees and their immediate family members to a 10 per cent discount on all merchandise. ree times a year, employees were also entitled to a 20 per cent discount. e company notifi ed employees when these times occurred. e policy stated that violation would result in "immediate termination." On Sept. 19, 2013, an employee submit- ted an incident report to the Winners loss prevention department indicating that the worker had tried to refund merchandise with tickets that didn't match the receipt. Winners investigated and no suspicious ac- tivity was found in relation to the transac- tion. However, the investigation revealed two transactions involving the worker's dis- count card two minutes apart on Sept. 8. e transactions involved using diff erent credit cards to pay. e loss prevention department re- viewed video footage in the store from Sept. 8 and observed the worker and an unknown female in the same line-up but going to sep- arate registers. ey both used the worker's discount card, though they didn't appear to communicate with each other. Further investigation determined an unknown woman used the worker's discount card a number of other times for a total discount amount of $70.47. e department interviewed the worker on Oct. 9. e worker acknowledged that he was aware of the policy and told them his wife had given the card to someone. After he was told Winners could review the transac- tions, the worker said he had given the card to a friend at the store. Upon viewing the video footage, he confi rmed the woman in line with him was the friend. e worker claimed he had met the friend in the store and nothing had been pre- planned. He said the friend asked him if he had a discount card and if she could use it. He gave it to her in what he called a "bad error in judgment." He described the woman as an old friend but later said he wasn't close with her and she didn't return the card to him be- fore she left the store. e worker off ered to repay the money and wrote a voluntary statement stating that he gave the discount card to a friend. He apologized and said he wouldn't give his card to anyone in the future. He fi nished the statement with "now I am aware of the dis- count policy." On Oct. 13, 2013, Winners terminated the worker's employment for violating its policy. ough the worker had no previous disci- pline on his record, the company felt he had engaged in "serious culpable misconduct" by violating the discount policy, warranting dismissal. e worker, through the union, grieved the dismissal. He claimed it was a spur-of- the moment lapse in judgment for which he was sorry.

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