Canadian Employment Law Today

6 | November 25, 2015 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends/Ask an Expert Chocolate bars weren't where they were supposed to be bars to the lead hand on duty, who told the employee to follow the standard procedure for such circumstances — the chocolate bars were to be treated as damaged goods or overages and a report should be generated. en, the bars would be placed in a secure area — such as the dock office — and would later be returned to the candy company. However, the procedure wasn't followed and the bars were left on a billing desk in the shipping area without the proper paperwork being completed. e lead hand told some of the employees not to touch them because they would get into trouble, though there was no evidence Deslauriers was one of the employees who received the warning. Worker spotted with damaged chocolate bars Two days later, the terminal manager heard about the discovery of the chocolate bars and checked surveillance video of the area where they were placed. e footage showed Deslauriers walking by the desk and knocking or dropping something to the floor. He picked up the item and then raised something in his hand to his mouth, a move he repeated twice more in the next few minutes. e terminal manager took this as evidence that Deslauriers ate some of the chocolate bars. e manager called a meeting with Deslau- riers and the lead hand to ask Deslauriers about the bars. According to the manager, Deslauriers became agitated and upset and refused to sit down. He asked "what choco- late?" e manager told Deslauriers he was being relieved of his duties pending further investigation, and Deslauriers said he left the bars in a supervisor's desk so the supervisor could advise on what to do with them once he returned from vacation. Deslauriers then left the office to get the bars, followed by the manager. e manager found Deslauriers in the su- pervisor's office, loudly telling the supervi- sor that the manager "had it in" for him and protesting his suspension. Deslauriers even- tually left the office, slamming the door be- hind him. ere were several chocolate bars on the desk. ree days later, on Sept. 18, they met again and Deslauriers was once again "un- professional and defiant," according to the manager. Deslaurier admitted he had eaten at least part of one chocolate bar but said it was "garbage" because it was damaged. He also claimed he hadn't been trained in how to handle damaged goods and overages, and tried to redirect questions with other questions. Deslauriers also claimed a supervisor had told him at the time he should take some of the chocolate. Trans X considered Deslauriers' attitude during the investigation — including a lack of remorse and truthfulness — his previous last chance agreement, and the seriousness of misconduct it viewed as theft. It decided to terminate. Deslauriers' employment. Two other employees who had eaten some of the chocolate bars were also confronted, with one resigning and the other receiving a last chance letter of discipline after show- ing remorse and saying he had taken the candy for children on the street. Neither the employee who had discovered the bars nor the lead hand on duty at the time were disciplined for failing to follow proper pro- cedure in reporting the damaged bars. e adjudicator agreed that Trans X had reason to discipline Deslauriers, as he ad- mitted he took and ate at least part of a choc- olate bar. ough he denied knowledge of company process, Deslauriers should have been aware that overages or damaged goods were to be returned to the customer — he had to have received training on that point as a fill-in lead hand. His claim that it was a mistake and he didn't know he shouldn't eat any wasn't believable, particularly since he put the remaining bars in the supervisor's desk, said the adjudicator. e adjudicator found Deslauriers' ac- tions in eating part of a chocolate bar showed it wasn't planned. Deslauriers didn't take it from a customer order or make any other planned action — he just happened to walk by the bars, which were placed on a desk when they shouldn't have been. e adjudicator also dismissed the earlier last chance agreement, which didn't neces- sarily show dishonesty on the part of Deslau- riers. Other than that item of discipline, Deslauriers had 10 years of discipline-free service with Trans X. However, the adjudicator had issues with Deslauriers' story during the employer's investigation. He initially denied taking any chocolate before admitting it, and then claimed a supervisor had told him to have some — which the supervisor denied. It was also strange Deslauriers placed the bars in a supervisor's desk — when the supervisor wasn't there — instead of the secure area where they were supposed to be. Deslauri- ers couldn't explain why he did that — and why he didn't show the bars to the supervisor when the supervisor returned from vacation and before the manager called him into the office. "Whatever the truth may be, I am not sat- isfied that (Deslauriers) told the truth as to his actions and intentions with respect to the remaining bars, and I do not believe that he told the truth at the hearing with respect to the suggestion that (the supervisor) gave him permission to take any of the bars," said the adjudicator. "ese two events, combined with his initial ingestion of one of the bars, are sufficient to persuade me that the bonds of trust are irrevocably broken, and that the termination was for just cause." For more information see: • Deslauriers and Trans X Ltd., Re, 2015 Car- swellNat 5019 (Can. Labour Code Adj.). be some sort of bad faith conduct on the part of the employer. As such, it is unlikely that escorting a dismissed employee from the workplace in a respectful manner that does not draw attention, and providing her personal belongings to her after the dismissal, would be conduct that would at- tract damages. One idea is to respectfully and discretely escort an employee from the premises upon termination, but allow the employee to return to the workplace to pack up her personal belongings after hours (with supervision). However, if that is not possible, it is acceptable to discretely pack up an individual's personal belongings and send them to the employee after her dismissal. If the employee is not permitted to pack her belongings, it is a good idea to keep a careful inventory of what is packed and to ensure that all belongings are care- fully stored so that they are not damaged. For more information see: • Wallace v. United Grain Growers Ltd., 1997 CarswellMan 455 (S.C.C.). • Keays v. Honda Canada Inc., 2008 Car- swellOnt 3743 (S.C.C.). Meghan McCreary is a partner practic- ing labour and employment law with MacPherson Leslie & Tyerman LLP in Re- gina. She can be reached at (306) 347-8463 or mmcreary@mlt.com. « from DOCK WORKER on page 1 « from ASK AN EXPERT on page 2 Respect important The worker's misconduct wasn't planned,but he lied about the supervisor giving him permission to eat a chocolate bar.

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