Theft is theft: firing for shoplifting candy bar upheld at arbitration

A recent arbitration decision confirms that theft is a serious employment offence deserving of termination, even where the stolen item is of nominal value.

In Canada Post Corp. vs. Canadian Union of Postal Workers (Wilhelm termination grievance), Jeff Wilhelm’s employment was terminated after his employer received a report that he had been apprehended for shoplifting and after it completed its own investigation into the allegation.

Wilhelm – a 10-year employee – had attempted to steal a candy bar from a store while on duty and in uniform. He put the candy bar in his jacket pocket, went to the cash register, claimed that he had forgotten his wallet in his work vehicle and went to leave the store, all without removing the candy bar. On his way out, he was apprehended by the store’s loss prevention officer, who subsequently banned Wilhelm from the premises and contacted the employer to report the incident.

The employer’s investigation of this incident included a lengthy interview of Wilhelm during which he sought to characterize the incident as a “misunderstanding” and claimed that the candy bar was in his jacket pocket because his hands were full. Wilhelm also sought to blame the incident on a number of personal issues.

The employer determined that Wilhelm’s allegations were not credible and terminated his employment.

In a decision issued on May 28, 2019, arbitrator Vince Ready upheld the termination. In doing so, he focused on the severity of the misconduct “irrespective of the financial value of the item stolen” and the fact that Wilhelm had admitted an intention to steal during cross-examination, contrary to what he had initially claimed during his interview with the employer:

“[Wilhelm] showed utter dishonesty when he chose to conceal his intent to steal the chocolates from his employer by attempting to characterize the incident as a misunderstanding, rather than simply admitting he had made a mistake. Had [Wilhelm] been honest about his transgressions, and apologetic for his actions, the outcome of this case may very well have been different. However, in making the decisions he did, [Wilhelm] has irreparably breached the trust relationship necessary for a viable employment relationship.… I agree with the employer that [Wilhelm’s] admission so late in the proceedings is ‘too little too late.’”

This case serves as a valuable reminder that theft is theft, regardless of the value of the item stolen, and that employees who engage in such misconduct are deserving of a significant disciplinary response. Too often employers get caught up in the value of the item stolen, rather than focusing on what the act of theft signifies: a breach of the trust relationship between employee and employer.

This case also serves as a reminder of the value of conducting investigations before imposing discipline. Wilhelm’s dishonesty during the employer’s investigation provided considerable support for the decision to terminate and factored heavily into the arbitrator’s decision. Had an interview never been conducted, in addition to giving rise to concerns about the fairness of termination, it would have been impossible to rely on Wilhelm’s dishonesty with his employer as a basis to support termination.

Brandon Hillis is an associate at Roper Greyell LLP.