An arbitrator has upheld the dismissal of an Ontario worker who was fired for eating a chocolate bar that was supposed to be reported as damaged goods and not telling the truth about it.
Kian Deslauriers was a dock worker for Trans X, a Mississauga, Ont.-based transportation company. Deslauriers initially worked for Trans X through a manpower agency from September 2003 to January 2005, when he was hired full-time. He was responsible primarily for loading and unloading trucks at a Trans X shipping facility and in 2013 he was promoted to the position of lead hand, in which he temporarily filled in for supervisors when there were none on duty while continuing with his regular dock worker duties.
As a lead hand, Deslauriers was trained on Trans X’s policy regarding damaged product, overages, and shortages discovered by its employees. The process included photographing damaged product and place in a specific secure area so it could be returned to the customer. Lead hands were expected to ensure employees followed this process.
Deslauriers had a relatively clean discipline record over his 10 years of service, with the exception of a last chance agreement he was given in July 2014. The agreement expressed concern with his honesty and trustworthiness, but was based on a misunderstanding over when Deslauriers was expected to return from a vacation. Deslaurier later claimed he signed the last chance agreement under duress and the misunderstanding was a mistake, not based on dishonesty.
On Sept. 13, 2014, Deslauriers was working a regular shift but was not performing lead hand duties, as a lead hand was already there. Another employee discovered a box of chocolate bars wedged in a pallet that had been shipped by a candy company. The employee reported finding the chocolate bars to the lead hand on duty, who told the employee to follow the standard procedure for such circumstances — the chocolate bars were to be treated as damaged goods or overages and a report should be generated. Then, the bars would be placed in a secure area — such as the dock office — and would later be returned to the candy company.
However, the procedure wasn’t followed and the bars were left on a billing desk in the shipping area without the proper paperwork being completed. The lead hand told some of the employees not to touch them because they would get into trouble, though there was no evidence Deslauriers was one of the employees who received the warning.
Worker spotted with damaged chocolate bars
Two days later, the terminal manager heard about the discovery of the chocolate bars and checked surveillance video of the area where they were placed. The footage showed Deslauriers walking by the desk and knocking or dropping something to the floor. He picked up the item and then raised something in his hand to his mouth, a move he repeated twice more in the next few minutes. The terminal manager took this as evidence that Deslauriers ate some of the chocolate bars.
The manager called a meeting with Deslauriers and the lead hand to ask Deslauriers about the bars. According to the manager, Deslauriers became agitated and upset and refused to sit down. He asked “what chocolate?” The manager told Deslauriers he was being relieved of his duties pending further investigation, and Deslauriers said he left the bars in a supervisor’s desk so the supervisor could advise on what to do with them once he returned from vacation. Deslauriers then left the office to get the bars, followed by the manager.
The manager found Deslauriers in the supervisor’s office, loudly telling the supervisor that the manager “had it in” for him and protesting his suspension. Deslauriers eventually left the office, slamming the door behind him. There were several chocolate bars on the desk.
Three days later, on Sept. 18, they met again and Deslauriers was once again “unprofessional and defiant,” according to the manager. Deslaurier admitted he had eaten at least part of one chocolate bar but said it was “garbage” because it was damaged. He also claimed he hadn’t been trained in how to handle damaged goods and overages, and tried to redirect questions with other questions.
Deslauriers also claimed a supervisor had told him at the time he should take some of the chocolate.
Trans X considered Deslauriers' attitude during the investigation — including a lack of remorse and truthfulness — his previous last chance agreement, and the seriousness of misconduct it viewed as theft. It decided to terminate. Deslauriers’ employment. Two other employees who had eaten some of the chocolate bars were also confronted, with one resigning and the other receiving a last chance letter of discipline after showing remorse and saying he had taken the candy for children on the street. Neither the employee who had discovered the bars nor the lead hand on duty at the time were disciplined for failing to follow proper procedure in reporting the damaged bars.
The adjudicator agreed that Trans X had reason to discipline Deslauriers, as he admitted he took and ate at least part of a chocolate bar. Though he denied knowledge of company process, Deslauriers should have been aware that overages or damaged goods were to be returned to the customer — he had to have received training on that point as a fill-in lead hand. His claim that it was a mistake and he didn’t know he shouldn’t eat any wasn’t believable, particularly since he put the remaining bars in the supervisor’s desk, said the adjudicator.
The adjudicator found Deslauriers’ actions in eating part of a chocolate bar showed it wasn’t planned. Deslauriers didn’t take it from a customer order or make any other planned action — he just happened to walk by the bars, which were placed on a desk when they shouldn’t have been.
The adjudicator also dismissed the earlier last chance agreement, which didn’t necessarily show dishonesty on the part of Deslauriers. Other than that item of discipline, Deslauriers had 10 years of discipline-free service with Trans X.
However, the adjudicator had issues with Deslauriers’ story during the employer’s investigation. He initially denied taking any chocolate before admitting it, and then claimed a supervisor had told him to have some — which the supervisor denied. It was also strange Deslauriers placed the bars in a supervisor’s desk — when the supervisor wasn’t there — instead of the secure area where they were supposed to be. Deslauriers couldn’t explain why he did that — and why he didn’t show the bars to the supervisor when the supervisor returned from vacation and before the manager called him into the office.
“Whatever the truth may be, I am not satisfied that (Deslauriers) told the truth as to his actions and intentions with respect to the remaining bars, and I do not believe that he told the truth at the hearing with respect to the suggestion that (the supervisor) gave him permission to take any of the bars,” said the adjudicator. “These two events, combined with his initial ingestion of one of the bars, are sufficient to persuade me that the bonds of trust are irrevocably broken, and that the termination was for just cause.”
For more information see:
• Deslauriers and Trans X Ltd., Re, 2015 CarswellNat 5019 (Can. Labour Code Adj.).
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