The decision involved discharge of
an employee with 17 years of service and a clean record for theft.
The grievor engaged in petty thefts of juice bottles from the
company's cafeteria. When confronted by the employer, the
grievor denied stealing the items. The grievor instead suggested
that the cafeteria staff was making mistakes or there was a
conspiracy to accuse the grievor of theft because the staff did not
After learning of the company's
decision to discharge him, approximately an hour later, the grievor
confessed to taking "stuff" from the cafeteria, but only
later did the grievor show remorse for his actions. The arbitrator
at the arbitration agreed that this only aggravated an already
serious breach of his employee obligation, that of honesty and
While the employer deemed discharge
as the appropriate penalty in this case, the Union argued that
discharge was excessive and a time served suspension would be a
proportionate disciplinary response.
At the arbitration, Union counsel
emphasized the grievor's lengthy service and the remorse the
grievor experienced as a result of his wrongdoing. Counsel further
noted the trivial value of the items stolen and the fact that
Company suffered no real financial harm. The arbitrator accepted
the grievor's genuine remorse but held that established
patterns of dishonest misconduct could not be ignored.
At paragraph 64, the arbitrator
noted the following factors that are to be taken into account when
determining a penalty in such circumstances:
whether there was any confusion on
the part of the employee personally or resulting from the
employer's rules or policies, or from the employer's
enforcement thereof, particularly regarding the goods in
whether theft is a problem in the
workplace, and the employer's response to other instances of
theft in the workplace;
whether the theft was
premeditated, or the result of confusion or an impulsive momentary
the nature and seriousness of the
theft (including the value of the goods involved);
whether there was a single act of
theft, or a pattern of theft-related or other dishonest conduct;
the grievor's behaviour and
reaction when confronted with the allegation of theft, and
the grievor's character and
reputation for honesty in the workplace and in the community
the seniority and employment (not
just disciplinary) record of the employee; and,
the grievor's age and other
personal circumstances (including any compelling sympathetic
personal motivation for the acts in question).
The factors that speak to an
employee's character and trust rehabilitation potential are
most significant. Timely acceptance of misconduct and taking
responsibility for it offer insight to an employee's true
character and determine the extent to which the employee can be
trusted again. In this case, the arbitrator stated the
grievor's remorse was "too little, too
This case serves as a reminder to
employers that while discharge may in many cases be an appropriate
response to an employee who has stolen from the company, employers
must still engage in a careful consideration of various factors,
including mitigating factors, when imposing an appropriate penalty
for workplace misconduct.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
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