Grocery store employee fired for theft, reinstated with 4-month suspension

Cashier giving free case of pop to customer without authorization was serious misconduct, but her intentions weren’t dishonest: Arbitrator
By Jeffrey R. Smith
|Canadian Employment Law Today|Last Updated: 10/16/2018

Employee theft is a serious form of misconduct that often is just cause for dismissal. However, the employee’s intent goes a long way towards determining how serious it is. Good intentions, even if misguided, can save an employee’s job.

An Alberta grocery store worker who was fired for not following instructions and giving away product without authorization has been reinstated by an arbitrator with a lengthy suspension on her record.

The 59-year-old employee, referred to as KW in the hearing, was a cashier at a grocery store run by Calgary Co-operative Association. She was hired in 2008 as a full-time cashier and remained in a full-time position as the store increased the number of part-time and casual employees.

The worker suffered from epilepsy, chronic pain, hearing and memory deficits, and depression, but her ailments didn’t affect her job performance — she was the recipient of multiple awards for exemplary service and compliments on her level of service and customer attention, and had no discipline on her record.

However, KW’s concern with customer service sometimes went too far, in the opinion of some at the store. KW prided herself on her devotion to Co-op customers, but the manager of the store received some complaints that she took too long serving customers because of her attention to detail and tendency to chat — though he also received many compliments about her. The manager felt that sometimes KW overdid things, especially when customers were in a hurry, and she needed to find a balance between meeting customer needs and meeting the business needs of the Co-op store.

The issues regarding KW’s attention to customers were increased by her tendency to accept coupons that were expired or for other stores. In these cases, she would use generic transaction codes to circumvent the system and process the transactions. Management spoke to her about mishandling coupons, but KW said supervisors and managers were inconsistent with their directions — some accepted expired coupons, while others told her not to, she claimed. If there was any confusion, she said she would call a supervisor, as per company policy. However, many in management considered KW difficult to supervise because of her tendency to verbally agree to instructions but do things her own way if she thought it was best for customer service.

On one occasion in early January 2017, KW tried to page a supervisor regarding a customer who was trying to use two expired coupons totalling $30 on a purchase of more than $500. No one responded, but an off-duty supervisor told her “she could probably take them.” She entered the code but her till crashed, leading to two managers to come by and complete the order while KW was sent to another till. The manager on duty was concerned she had tried to process expired coupons, but didn’t follow up with the supervisor who she had said had authorized the coupons. Afterwards, KW called the manager to apologize and offered to reimburse Co-op for the value of the expired coupons.

Confusion over sale price

Two weeks later, KW was working in the afternoon at the Co-op store. A customer wanted to purchase two cases of store-branded pop called Citrus Wave. After KW scanned the cases, the customer noticed the charge was $3.99 per case, though the store was having a sale on most of the store-branded pop for $2.99 per case. The customer said that a store supervisor had told her the previous week that the pop would be on sale, so KW asked a clerk for a price check and paged a supervisor. While the clerk checked the price, KW took out a sheet of yellow paper which was used for refunds or free product — under a voluntary code of practice in the Canadian retail industry, if the scanned price of an item without a price on it scans higher than the displayed price, the customer is entitled to receive the item for free or $10 off if the price is more than $10. The fairness in pricing policy was also included in Co-op’s policy manual.

The clerk confirmed that particular flavour of pop wasn’t on sale, though all the other flavours were. The supervisor on duty arrived and confirmed that Citrus Wave wasn’t on sale, but in the interests of keeping the customer happy over the confusion from another supervisor having erroneously told her it was on sale, instructed KW to charge the sale price of $2.99 each for the two cases.

The supervisor returned to her office and checked the transaction on the computer, noticing that KW had only rung in one of the cases. She returned to the till and asked KW about it, and KW said the customer was the grandmother of another Co-op employee “and she should get one free.” The supervisor said she didn’t care who the customer was, she wasn’t supposed to get a free case of pop.

The supervisor reported the incident to the manager and, after some inquiry, KW was put on an administrative suspension while Co-op investigated. KW was interviewed about the incident, and she said she believed the price fairness policy applied, since the price coming up on the scanner wasn’t what the customer had been told the previous week. She said some supervisors and managers encouraged staff to do “whatever it takes” to make customers happy and make a sale, and she felt it was an appropriate action to take — it was the store’s error.

KW also said she didn’t recall being told to scan the two cases of pop at the sale price instead of giving one for free, and “if she’s said she said that, I apologize, I did not hear that.” She mentioned her medical issues such as hearing problems and neurological issues, as well as the fact that her father had died the previous month, but felt blindsided by the meeting as she hadn’t been informed of it in advance — something that was required in the collective agreement for disciplinary and security investigative meetings.

Co-op felt the early January incident with expired coupons wasn’t a big concern, but the free case of pop incident was an example of KW intentionally giving away product and disregarding direction from her supervisor. This constituted “an act of dishonesty and a breach of trust” that warranted termination of employment. Store management also considered KW’s unwillingness to accept responsibility as a factor that irreparably harmed the employment relationship — she kept blaming someone or something else, such as her medical problems, inconsistent instructions, a misunderstanding, or the loss of her father. On Feb. 16, Co-op terminated KW’s employment.

No dishonest intentions: Union

KW’s union grieved the dismissal, arguing KW had no dishonest intentions and she genuinely believed the fair pricing policy applied, she misunderstood the supervisor’s instructions, and she was concerned with providing the best customer service.

The arbitrator agreed that employee theft “is a major violation of the employee-employer relationship” and often justified termination. The process known as “sweethearting” — improperly and intentionally discounting or giving away product to someone they know — is a particular type of theft in the retail food industry and a concern of Co-op when KW pointed out the customer’s relation to a co-worker. However, there was a question as to KW’s intentions and whether theft was a part of those intentions, said the arbitrator.

The arbitrator found that there was no question the pop the customer was trying to purchase wasn’t on sale and the price check confirmed that. The supervisor also confirmed that the pop wasn’t on sale. However, when the customer said she had been told by another supervisor the previous week that Citrus Wave pop was going to be on sale, “a seed was planted” in KW’s mind that the pop was on sale — her explanation as to why she gave a free case to the customer was the customer’s belief that the pop was in fact on sale and her inability to understand how all the other flavours could be on sale but not that one, the arbitrator said.

KW’s actions in the transaction all pointed to the fact she believed the Citrus Wave pop should be on sale and in her mind, the price fairness policy should be implemented, despite the fact the price was confirmed and the supervisor told her the scanned price was correct. She followed through with this belief when she failed to follow the supervisor’s instructions to charge the customer $2.99 for each of the cases and instead provided one for free, said the arbitrator.

Despite this misconduct, the arbitrator found that termination of employment was too harsh. The arbitrator noted that KW’s actions were keeping in line with her “customers first, Co-op second” approach, which had been essentially condoned by the store — she had been spoken to about overdoing things, but not disciplined for anything, including the expired coupons incident two weeks before the free case of pop incident.

In addition, the arbitrator noted that KW’s misconduct was motived by her “customers first” policy and not any intention of “sweethearting.” However, though she may have believed the price fairness policy applied, she made “a serious error of judgment” by not seeking authorization or clarification — giving away product because of a scanning error always required authorization from a supervisor or manager.

The arbitrator found KW’s misconduct was serious and warranted a lengthy penalty in the range of a six-month suspension, but Co-op violated the collective agreement by not telling her the interview was a security interview and not sharing the information it had gathered in its investigation prior to her termination. In addition, there was no indication to KW that her job was in jeopardy and she had never been disciplined before.

The arbitrator reduced the appropriate suspension length by two months and determined that a four-month suspension be substituted for dismissal, with KW reinstated and compensated for lost wages and benefits, minus four months for the suspension.

For more information see:

Calgary Co-operative Assn. Ltd. and Union of Calgary Employees (KW), Re, 2018 CarswellAlta 1634 (Alta. Arb.).

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