Theft in the retail food industry: making termination stick

An employee who steals from his or her employer strains the employment relationship practically to the breaking point. Small wonder, then, that many employers believe that termination is a reasonable response to employee theft. However, this fact does not prevent arbitrators from exercising their discretion to substitute a lesser penalty in appropriate circumstances. Examples of factors that might persuade an arbitrator to mitigate a penalty include emotional problems on the part of the grievor, evidence that the theft was impulsive and not premeditated, frank acknowledgement of wrongdoing by the grievor, lack of a disciplinary record and the prospects for future good behaviour.

When the theft occurs in the retail food industry, however, the cases show a greater reluctance by arbitrators to interfere in the employer’s decision to terminate the employee, even where the value of the items taken is small, and the employee has a long, unblemished record of service. The rationale for this reluctance can be found in the special conditions of the industry: numerous employees working in large, open areas under relatively little supervision, and a business operating on a slim mark-up of one to two per cent. These factors leave the employer highly vulnerable to petty theft, or what is commonly known as pilfering.

One other element that must be present to increase the likelihood of a termination being upheld at arbitration is the existence of a well-established policy under which termination is made the automatic consequence of theft. Further, the policy should be made clearly known to all employees and consistently applied. The importance of a clear, unambiguous policy can be seen in a recent award by arbitrator Lorne E. Dunkley.

At issue in Zehrs Markets Inc. v. U.F.C.W., Local 175/633 (April 4, 1997) was the termination of a part-time cashier with six years’ seniority. The employee was discharged after having been observed stealing $0.83 worth of sliced turkey from her employer’s Deli counter. As is often the case in this type of grievance, one of the grievor’s defences was that she did not knowingly steal the item, whereas the employer maintained that her act was planned and deliberate.

The arbitrator found that the grievor’s explanations for her actions were inconsistent and lacked credibility, and that her behaviour during the incident indicated that the theft could well have been premeditated. He noted that the case law on theft revealed that premeditation and a refusal to admit wrongdoing were two factors that militated against reducing the penalty.

A third factor was that the employer had widely publicized that the automatic consequence of pilfering would be termination. The arbitrator concluded that considering the size of the operation, the need for employees to be self-supervising, the fact that cashiers handle the employer’s money, and the widespread knowledge among employees that theft would be punished by termination, the dismissal should be upheld. To reinstate an employee who disregarded such unequivocal rules would negate the deterrence that those rules were designed to achieve.

For further information, please contact George Rontiris at (613) 563-7660, Extension 225.

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