Canadian Employment Law Today

and the supplier had given permission to take them, Dejong insisted on getting the form so he wouldn't have difficulties with se- curity officials when he took them. ere were several large wooden spools around the facility which were used for steel cable. e company had to keep track of them and return them to suppliers for deposit once the steel cable was used up. Sometimes if the spools were in poor condi- tion they would be discarded in dumpsters instead of being returned. Employees could purchase spools or acquire ones considered scrap through the regular advice of ship- ment process. On Jan. 24, a scheduled day off, Dejong was asked to work some overtime to repair a piece of equipment. Because of the last-min- ute nature of the call, he didn't have a chance to eat dinner before coming in. Once he was done his repair work, he had an hour before he had to check the machine, so he asked the production supervisor if he could leave for a meal break as he knew his wife was making dinner. He didn't ask for permission to take a company vehicle home for dinner, so the supervisor assumed he was going to one of the designated restaurants. As Dejong proceeded to the two compa- ny vehicles that were available — an open- bed truck and a pickup truck — he saw two wooden cable spools that he had seen lying around earlier in the month. He also noticed a panel van normally used by tradesmen was available, so he decided to roll the spools into the van and drive the van home for dinner. Dejong drove the van through the smaller gate, which wasn't staffed at that time be- cause it was Saturday. However, on his way home he was stopped by a police officer who was a former Lanxess security officer and knew employees weren't allowed to take company vehicles so far from the facility. e officer contacted Lanxess security and told them about the van and the spools, and se- curity relayed an order for Dejong to return. Dejong headed back to the Lanxess facil- ity, but he later testified that he "panicked" and stopped to dump the wooden spools in a ditch at the side of the road. At the main gate, he acknowledged that he had dumped them and complied with instructions to re- trieve them. He then returned them to the spot where he had found them, completed his duties and went home. e following Monday, Dejong met with his supervisor and another manager and told them "I want to come clean and tell the truth about what happened." He said he didn't think he needed no value slips because he thought the spools were being discarded, as he had no- ticed them sitting there for some time. He also explained why he went home for dinner in the company vehicle, as he hadn't eaten and was pressed for time. He denied any advance plan- ning of the theft but acknowledged "I realize now I did steal without asking or took without permission; I realize now there is possibly a value on these spools." Lanxess management reviewed the secu- rity reports and decided Dejong had com- mitted theft of company property that was preplanned. It terminated his employment on Jan. 28. Dejong expressed shock and re- morse and asked for his job back. He letter delivered a letter of apology asking Lanxess to reconsider. e arbitrator found that Dejong knew he was violating workplace rules to drive a company vehicle home without express per- mission as well as taking the wooden spools. It was also likely that he decided to take the panel van because he would be able to con- ceal the spools in it, which added an element of preplanning. When he later tried to con- ceal his misconduct by dumping the spools on the side of the road, it compounded his predicament. However, the arbitrator noted that the collective agreement didn't contain a spe- cific penalty for theft, but rather it was one of the options available to Lanxess — the com- pany had a policy of progressive discipline for most forms of misconduct. In addition, "the most significant factors are those which speak to the employee's character and trust rehabilitation potential," the arbitrator said. In Dejong's favour, he was a 45-year em- ployee with a good record of service and no prior discipline. It also seemed evident he didn't preplan the theft, as he wasn't even originally supposed to be at work that day and instead took advantage of an opportu- nity. Once he brought the spools back, he ac- knowledged his wrongdoing multiple times and expressed remorse, including a written apology to the company after his dismissal. e arbitrator determined the employ- ment relationship could be repaired and there was a high likelihood of rehabilitation for Dejong. Lanxess was ordered to reinstate Dejong without compensation, with the time since his dismissal serving as a disciplinary suspension. In addition, Lanxess would have the right to refuse any overtime for Dejong or permit him to drive any company vehicles off its property for 12 months. See Lanxess Inc. and Unifor, Local 914 (Dejong), Re, 2015 CarswellOnt 17785 (Ont. Arb.). Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2016 More Cases/Ask an Expert Employee 'panicked' and dumped materials in ditch « from LONG-TIME WORKER on page 1 The employee had 45 years of service with no prior discipline. The theft wasn't preplanned, as he wasn't orginally scheduled to work that day. He also provided a written apology to the company after his dismissal. « from ASK AN EXPERT on page 2 nal investigation and concluded that the employee did commit theft. e employer asserted that it had just cause to terminate the employee, and she would not be paid the severance package. e Ontario Superior Court of Justice found that the employer's investigation was flawed, and the employee's conduct relating to the missing funds did not involve an es- sential condition of her employment con- tract. As a result, the court held that termin- ation for cause was disproportionate, and as such she was entitled to be paid the sever- ance package. e above cases show that although em- ployers can rely on misconduct discovered after termination to cease paying sever- ance, it must meet the high bar of proving that the new evidence would amount to just cause. e test for what constitutes just cause is a very difficult one to meet. ere must be clear and cogent evidence that the employee engaged in conduct that re- sulted in a breakdown of the employment relationship. Courts are often suspicious of assertions of cause made after the fact, as there is an increased perception that just cause may be alleged in bad faith as a means to avoid paying severance to which an em- ployee is entitled. For more information see: • Janice Rubin & Christine omlinson, Human Resources Guide to Workplace In- vestigations (Ontario: Canada Law Books, 2006). • Van den Boogaard v. Vancouver Pile Driv- ing Ltd., 2014 CarswellBC 1167 (B.C. C.A.). • Dennis v. Ontario Lottery and Gaming Corp., 2014 CarswellOnt 9687 (Ont. S.C.J.). Tim Mitchell practices management-side labour and employment law at Norton Rose Fulbright's Calgary office. He can be reached at (403) 267-8225 or tim.mitchell@norton - rosefulbright.com.

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