Employee dismissals cancelled due to employer's incomplete investigation

Employees were caught on video stealing cans of soda; employer had a zero-tolerance policy for theft
By Diana Theophilopoulos, Stikeman Elliott
|employmentlawtoday.com|Last Updated: 03/08/2013

In a recent decision involving the Quebec company Services Entretien d’édifices Allied Inc. (Allied), the Labour Relations Board of Quebec cancelled the terminations imposed on five maintenance employees for theft and reserved its jurisdiction to determine the appropriate remedy and damages.

Allied provides maintenance services to public buildings and has 250 employees. Allied has entered into several contracts with clients providing for the cleaning of their buildings.

In the present case, Allied immediately dismissed five of its maintenance employees after viewing a surveillance video that appeared to show the employees removing cans of soda from a vending machine located in a client’s cafeteria. The video showed the employees repeatedly reaching into the dispenser slot and pulling out cans of soda over the course of a few days.

The terminated employees, four of which were close to 60 years old and over, filed a complaint for a dismissal without good and sufficient cause with the Labour Standards Board.

In support of the dismissals, Allied argued that in the maintenance industry, the theft of a client’s property, even of little value, constitutes a serious fault and could cause significant prejudice to the employer’s business and lead to the loss of the contract with the client. Furthermore, the employees worked the night shift, where a higher degree of trust and loyalty were expected.

As such, Allied has a “zero-tolerance” policy with respect to theft by an employee. Furthermore, Allied submitted that the video footage constituted direct and unequivocal evidence of a concerted theft by the employees of several cans of soda and that no further investigation was needed.

However, the evidence presented at the hearing clearly painted a different picture. Indeed, a representative from the soda company confirmed that the money in the vending machine corresponded fairly closely to the number of cans missing. Furthermore, the agent confirmed that the machine was defective and cans of soda would occasionally get stuck in the machine or not be released at all. Also, the machine would occasionally release more than one can of soda at a time. This situation was also corroborated by the employees’ testimony.

The Board concluded that Allied had not attempted to obtain the employees’ version of the incidents nor did it take any steps to examine the vending machines before proceeding with the dismissal of the employees.

In light of this, the Board concluded that Allied had reacted prematurely, without conducting a complete investigation into the suspected acts of theft. As such, Allied failed to demonstrate that the employees were terminated for a good and sufficient cause.

This case serves as a reminder to employers to act diligently before proceeding with the dismissal of an employee. In cases of suspected theft, fraud or other serious misconduct, an employer should always conduct an impartial and complete investigation of the incident. In the context of such investigation, the accused employee should be given the opportunity to provide his version of the facts. In such circumstances, it may be appropriate to impose an administrative suspension on the employee pending the outcome of the investigation.

Once the investigation is completed, the employer must determine if it has compelling and serious evidence of the alleged misconduct before imposing a disciplinary measure, particularly a dismissal, which constitutes the ultimate sanction.

For more information see:

Achile, Dornéval, Espera, Meus and Scharoun c. Services d’entretien d’édifices Allied (Québec) Inc., 2013 QCCRT 0059 (Que. Labour Relations Bd.).

Diana Theophilopoulos is an associate in the Montréal office of Stikeman Elliott and a member of its Employment and Labour Group. She can be reached at (514) 397-3033 or dtheophilopoulos@stikeman.com.

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