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“Workplace Capital Punishment” Remains a Prima Facie Appropriate Penalty for Employee Theft

Trust is fundamental to any employment relationship. The decision in Messier-Dowty Inc v. International Association of Machinists and Aerospace Workers, Local Lodge 905, serves as an important reminder of this principle.

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 like him.

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 trust.

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 question;
• 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 aberration;
• 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 subsequently;
• the grievor’s character and reputation for honesty in the workplace and in the community generally;
• 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 late”.

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 lawyers at CCPartners are experienced in all areas of labour relations. Click here for a list of lawyers who can assist employers in navigating unionized workplace discipline and discharge.