When it comes to just cause, lying makes it worse

Peter was an assistant grocery store manager who was fired for theft and breach of trust. After seven years of employment, one day he was working late and a couple of employees saw him wondering around the store with a shopping basket putting food items in it off the shelf. Another employee remembers him going to get two or three grocery bags from a checkout counter. Another employee saw him leaving carrying three grocery bags with items inside but did not know what was actually in the bags.

All of this was reported to the store manager the next day and Peter ended up getting fired. Peter explained at trial that this was all a simple misunderstanding. Part of Peter’s responsibilities each day was to do an out-of-stock count. The night employees would not usually see him doing this but that day he was working late. He would go around with a scanner and scan the bar codes on the bottom of the shelf wherever the shelf was empty so that the computer would know to order more of those items to refill the shelves.

Peter explained that he carried a shopping basket around with him while doing this because he would often see items that had been moved by customers from their appropriate place on the shelf. He would put them aside to be re-shelved later by the stocking clerk.

Peter denied having shopping bags with him when he left that day. If we just stop there, it would appear that Peter was falsely accused and was entitled to pay in lieu of reasonable notice given his management position and his seven years of service.

Of course, that’s not the end of the story. Peter’s explanation as I have set it out is the one he gave at trial. When he was confronted by management twice in the next few days following these incidents, he gave no such explanation. When he was originally confronted he made no mention of the fact that he was doing an out-of-stock count or that he had a basket with him to collect misplaced items for re-shelving. He simply denied doing any shopping and denied taking any items home with him.

A few days later, management met with him again and Peter continued to simply deny what the other employees had said.

At the end of the trial, the judge found that there was no convincing evidence that Peter had actually stolen anything. Whether or not he had grocery bags with him when he left, nobody could give evidence as to what was inside them.

When Peter was asked at trial, however, as to why he did not give this explanation when he was first confronted the day after the incident and a few days later, he had no real explanation. He said he was shocked and upset when the allegations were brought to his attention the day after the incidents but that does not explain why, two days later, he was beating the same drum.

The judge found that Peter knew how important the issue of theft was in the grocery business and that the mere appearance of a manager taking goods without paying was a very serious matter. Peter knew how important it was that managers appear to be honest.

The judge found that Peter was obliged, at the time he was confronted, to explain his behaviour and he failed to do it, even though he had a reasonable explanation.

The judge found that Peter’s failure to provide a complete and truthful explanation for his behaviour breached the faith and confidence the employer had to be able to have in him to continue as a management employee. The judge found there was just cause for Peter’s termination and Peter lost his case.

My guess is that while there was no real evidence of theft, the judge was persuaded that that was what likely occurred. Knowing his job was on the line after seven years of hard work, why would Peter’s reasonable explanation only surface at trial? There is no other rational explanation as to Peter’s behaviour and no one would accept that he could remember at trial two years later what he could not remember the day after the incident. One way or another Peter lied to the boss, either about stealing or by failing to disclose his explanation.

The lesson of the day is, if you mislead your boss on an important issue or question, you could be fired without pay in lieu of notice.

Of course, this does not mean that any white lie will justify termination without notice. Telling the boss that you think guys who are going bald look attractive just to make him feel better, even though you don’t think so, is not a capital offence (I actually appreciate it).

Telling the boss you did not steal the highlighter from his desk to use at your desk, again, will not justify a termination without notice.

Telling the boss that you were away on an emergency leave visiting your sick mother when you were actually on the beach in Cancun sipping Margueritas will, however, usually put the nail in the coffin, even if your mother was there and the Margueritas did in fact give her a hangover.

Peter took a bad situation and made it worse. Don’t repeat his mistake.

As published in the Hamilton Spectator, March 30, 2009. Ed Canning practices labour and employment law representing both employers and employees with Ross & McBride LLP.