Canadian Employment Law Today

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Read the facts and see if the judge agrees YOU MAKE THE CALL 8 No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Employer doesn't like those apples THIS INSTALMENT of You Make the Call features a grocery store worker who was caught taking too many apples. e worker was a clerk for 16 years at a British Columbia grocery store operated by Overwaitea Food Group. She had no disci- plinary issues and her performance evalua- tions usually met or exceeded expectations. e worker's duties included off -till du- ties in the store's cash offi ce, which required attention to detail and mostly unsupervised work, during which she handled almost all of the cash that went through the store. She usually started work at 6:30 a.m. but often ar- rived early before any other cashiers. Overwaitea had a team member purchase policy (TMP) that prohibited employees from entering their own transactions and buying items outside of regular store hours. Employees were also required to immediate- ly pay for everything purchased at the store. Employees had been dismissed for violating the TMP and the worker was aware of this. e worker was diabetic and ate apples throughout the day to control her blood sugar. She usually arrived at work early, and on days when she didn't have apples with her, she gathered apples from the store's produce section, weighed them at the till and saved the transaction under her employee number. She was aware of the policy not to complete her own transactions, but thought it was an acceptable workaround to save her transac- tions, which generated a slip, and present the slip to another cashier later in the day to pay for the apples during store hours. In March 2015, an anonymous employee tipped off the resource protection depart- ment that the worker had saved a transaction for apples and had asked to recall the transac- tion during store hours. e department in- formed the store manager, who approached the worker and told her to "ensure you follow all the store policies, including for your own purchases." e worker claimed she didn't make the connection and said it never occurred to her that she violated the policy. e manager also told her to avoid going down the same road as an employee who had been fi red for breaching policy. e worker was confused but didn't ask for clarifi cation. ree months later, a cashier told the man- ager that the worker continued to pay for ear- lier saved transactions. e manager gener- ated a report of unrecalled saved transactions over the previous 12 months, which showed the worker had bought apples 78 times dur- ing the past year before store hours began and failed to recall and pay six times. e manager called an investigative meet- ing and asked the worker about saved trans- actions that weren't recalled. e worker indicated she understood that such trans- actions cost the store money. She acknowl- edged that had happened "fi ve to ten times" for her and on those occasions, she got a ca- shier to ring it in as a department sale. e worker was suspended pending in- vestigation and it was confi rmed one un- recalled transaction was later paid for as a department sale. However, six didn't appear to have been paid for, going back 12 months, and the other cashiers didn't remember en- tering them. e manager also found that on four of the six days there was an unrecalled transaction, the worker purchased items later in the day, providing an opportunity to recall. e manager met with the worker again and the worker acknowledged that she must not have paid, but didn't intentionally avoid it. e manager noted she looked stressed but didn't seem surprised by the fi ndings. e manager dismissed the worker on June 26, 2015, to which the worker said "Are you serious?" and asked why she wasn't warned. e manager referred to his caution in March, to which the worker said she didn't make the connection and didn't intend to "rip the store off ." e manager felt the worker's intention didn't matter, as the matter was cut and dried — she breached the store's policy. YOU MAKE THE CALL Was dismissal too harsh? OR Was the worker's policy breach just cause for dismissal? IF YOU SAID dismissal was too harsh, you're right. e arbitrator agreed that the worker failed to pay for saved transactions for apples on at least six occasions over the 12 months before her dismissal. How- ever, there were no real indications she did so intentionally and it was more likely she simply forgot. She wasn't sure when these transactions took place and she always did it out in the open in front of store cameras, so there was no attempt to conceal what she was doing, said the arbitrator. In addition, the arbitrator pointed out that the worker remedied some unsaved transac- tions by having a cashier ring in a depart- ment sale, so it was even more unlikely she intended to act dishonestly. Given the num- ber of times the worker took apples from the store and saved a transaction — 78 times in one year — it was reasonable to believe she may have forgotten to pay for a few, even if she made a purchase later in the day, said the arbitrator. e arbitrator also found the store man- ager's warning wasn't a good one, as it was vague and the worker didn't understand to what the manager was referring. e arbitrator determined that Over- waitea failed to prove the worker acted with dishonesty that would lead to a breach of trust. Overwaitea was ordered to reinstate the worker with compensation. For more information see: •Overwaitea Food Group and UFCW, Local 1518, Re, 2015 CarswellBC 4003 (B.C. Arb.).

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