When scratch and save becomes scratch and get fired
Bernice had worked at the grocery store co-op for 18 years. She supervised other cashiers, wrote schedules and verified prices. She was only ever off sick for back surgery and usually arrived at work early.
In fall 2022, the store was having a scratch-and-save event. The tickets were kept with the cashiers who would scratch them to reveal the customer’s discount. A loss-prevention officer — and the store cameras — saw Bernice and another employee partially scratching several tickets and throwing all but two away in the garbage. The rule was that the cashier giving effect to the discount had to scratch the ticket to reveal the number. Apparently Bernice was scratching just enough that she could figure out what the discount was but leaving the ticket looking like it had not really been scratched. Later that day Bernice bought over $300 of groceries and received a 30 per cent discount — over $100. The next day, once the video recordings were reviewed, Bernice was confronted, admitted everything and was terminated.
Soon after Bernice wrote a letter to management apologizing for her behaviour, taking responsibility for her actions and asking that her dismissal be reconsidered — substituted for a last chance agreement and a probationary period.
The employer ignored the letter.
Bernice’s union grieved the termination. The human resource manager gave evidence that, during her long tenure, 17 people had been terminated for theft as minor as a Slurpee or a chocolate bar. Bernice’s shopping trip was the highest dollar value ever.
At law, it is presumed that theft justifies dismissal whether one in is a union or not. That presumption can be rebutted but it “depends on the nature and seriousness of the dishonesty to assess whether it is reconcilable in sustaining the employee relationship.”
The employer argued that Bernice’s obligations of honesty were heightened given her supervisory position, and that too is the law.
Bernice’s termination letter had been drafted before she ever walked into that meeting the day after the incident. The union successfully argued that this contravened the employer’s obligation to deal with Bernice in good faith and consider any explanation she might provide. There was also no evidence that it gave any consideration to her apology letter. The arbitrator drew a negative inference from these factors.
The union’s core argument was, that given Bernice’s history, track record, remorse and apology, some lesser consequence than termination was appropriate.
The arbitrator considered a number of factors. On the one hand, Bernice had a spotless record. Her behaviour, however, was premeditated: it took place over several hours.
Employee theft is one of the most serious violations of the employer’s policies. Bernice did not try to obfuscate or deflect. She admitted what she had done immediately and apologized, both verbally and in writing. The arbitrator wrote, “In the present case, the griever has a long-term service with the employer and previously unblemished disciplinary record. The incident was an exercise of remarkably bad judgment on the part of the griever and she admitted her wrongful act, apologized and sought a merciful outcome.”
Bernice was ordered to be reinstated to her position and the arbitrator decided to consider the substitute consequences at a later hearing.
This is one of the few cases you will ever read where someone stole $100 from an employer and got their job back. Quite frankly, I cannot imagine Bernice ever winning a wrongful dismissal suit if she was non-unionized and had to sue. Although there was no mention of it in the decision, I can’t help but wonder whether the arbitrator considered that the employer was not necessarily out any money. Somebody was going to get the 30 per cent off. They could have spent more, they could have spent less. Whether or not that is the case, Bernice was very lucky.
This article was originally published by The Hamilton Spectator.
