Worker overplays his employee discount card

Worker allowed friend to use card multiple times, contrary to company policy
|Canadian Employment Law Today|Last Updated: 11/11/2015

This instalment of You Make the Call features a worker who gave his company discount card to a friend.

The 64-year-old worker was hired to work as an associate in a Winners International store located in Ontario on Sept. 27, 2004. When he was hired, he signed a document outlining the company’s discount policy, which entitled employees and their immediate family members to a 10 per cent discount on all merchandise. Three times a year, employees were also entitled to a 20 per cent discount. The company notified employees when these times occurred. The policy stated that violation would result in “immediate termination.”

On Sept. 19, 2013, an employee submitted an incident report to the Winners loss prevention department indicating that the worker had tried to refund merchandise with tickets that didn’t match the receipt. Winners investigated and no suspicious activity was found in relation to the transaction. However, the investigation revealed two transactions involving the worker’s discount card two minutes apart on Sept. 8. The transactions involved using different credit cards to pay.

The loss prevention department reviewed video footage in the store from Sept. 8 and observed the worker and an unknown female in the same line-up but going to separate registers. They both used the worker’s discount card, though they didn’t appear to communicate with each other. Further investigation determined an unknown woman used the worker’s discount card a number of other times for a total discount amount of $70.47.

The department interviewed the worker on Oct. 9. The worker acknowledged that he was aware of the policy and told them his wife had given the card to someone. After he was told Winners could review the transactions, the worker said he had given the card to a friend at the store. Upon viewing the video footage, he confirmed the woman in line with him was the friend.

The worker claimed he had met the friend in the store and nothing had been preplanned. He said the friend asked him if he had a discount card and if she could use it. He gave it to her in what he called a “bad error in judgment.” He described the woman as an old friend but later said he wasn’t close with her and she didn’t return the card to him before she left the store.

The worker offered to repay the money and wrote a voluntary statement stating that he gave the discount card to a friend. He apologized and said he wouldn’t give his card to anyone in the future. He finished the statement with “now I am aware of the discount policy.”

On Oct. 13, 2013, Winners terminated the worker’s employment for violating its policy. Though the worker had no previous discipline on his record, the company felt he had engaged in “serious culpable misconduct” by violating the discount policy, warranting dismissal.

The worker, through the union, grieved the dismissal. He claimed it was a spur-of-the moment lapse in judgment for which he was sorry.

You Make the Call

Was dismissal justified?
Was lesser discipline more appropriate?

If you said dismissal was justified, you’re correct. The arbitrator found the worker had to have been aware of the policy, as he had reviewed it and signed a document saying so. He knew that giving the discount card to his friend would be risking immediate termination, but he did so anyway. He also acknowledged in his interview with the loss prevention department that he was aware of the policy. In addition, he didn’t retrieve the card from her, so he “facilitated her inappropriate use of that card on an open-ended basis, as she saw fit,” said the arbitrator.

The arbitrator also found the worker wasn’t honest about the incident being an example of poor judgment. The fact they were in line together and went to different registers and the fact she knew about his discount card showed it was likely preplanned. The worker’s account of whether she was a close friend or not was also inconsistent. The holes in the worker’s story showed he tried to mislead the investigation.

“Given (the worker’s) understanding of the potential consequences of termination for violating the policy, I find it improbable that he would spontaneously give (the friend) his discount card to use on an open-ended basis as she saw fit, unless she was a sufficiently close friend, and unless there was prior discussion between them, about giving his discount card to her,” said the arbitrator.

The arbitrator also noted the worker’s statement that “now I am aware of the discount policy” was an attempt to mislead the investigation and protect himself with another falsehood.

The arbitrator determined the employee “has engaged in a serious breach of trust undermining the integrity of the company’s policy, which relies on employee honesty and compliance.” His dishonesty and lack of forthrightness in the investigation undermined the trust necessary for a continuing employment relationship, said the arbitrator in upholding the dismissal.

For more information see:

• Winners Merchants Intl. LP and Workers United Canada Council, Local 152 (Mann), Re

, 2014 CarswellOnt 12968 (Ont. Arb.).

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