Arbitrator to Reconsider Case of Cashier Fired for Dishonesty
Legal Affairs - Workplace Today®
A grocery store
cashier in British Columbia was awarded compensation by an arbitrator after she was fired for being too generous with customers’ use of coupons, but the matter was referred back to the arbitrator for reconsideration on appeal.
The cashier allowed customers to divide up their purchases so they could use more coupons. The company felt this was against store policy. When confronted, the woman denied that she had ever allowed coupon splitting in the past.
The cashier was suspended for “severe breach of company policy” pending further investigation. Two weeks later, following a company audit, she was terminated for “serious breach of company policy.” The company’s investigation showed that she had in fact allowed coupon splitting on previous occasions.
The cashier was terminated for dishonesty. The company felt that not only was she dishonest when processing customer coupons, but she was dishonest to the employer during its investigation. She was dismissed without progressive discipline.
The union filed a grievance. The arbitrator disagreed with the company’s assertion that the woman had been dishonest. The company policy was confusing and so the cashier was not dishonest in her interpretation of it. Also, the woman’s actions during the investigation were not the result of dishonesty, but of the stress she was under.
The woman was deserving of discipline for not being more forthright, but she was not dishonest, the arbitrator found. Termination was too harsh a discipline for the woman, who had only one warning and two one-day suspensions during her nine-year history with the store. The employer did not have just and reasonable cause to dismiss the woman.
But the arbitrator did not order her reinstated. “This is one of those relatively rare situations in which reinstatement is inappropriate. The relationship between the company and the grievor is shot and on the evidence before me including the observations made at the hearing, is not capable of being rebuilt.” The arbitrator also noted the woman’s behaviour during the investigation and arbitration. “She was argumentative, unwilling to acknowledge how she might have done something wrong; confident to the point of fault in the validity of her position, and apparently unwilling to countenance the possibility that she might be mistaken on the application of the conditions of entitlement.”
The company was ordered to compensate the cashier from the time of her termination until the end of the arbitration hearing, a period of nearly six months.
“In determining the amount of compensation to be paid, I take into account the grievor’s share of responsibility and therefore limit any compensation to be paid to the period from April 26 (two weeks following the initial suspension) to October 17 (the end of the hearing). To my mind that is a just and reasonable resolution of the case,” the arbitrator said.
The union appealed the award to the B.C. Labour Relations Board on the grounds that it had no opportunity to say what might be appropriate compensation if reinstatement was not possible. It asked that the remedy be set aside and the arbitrator reconsider what damages would be appropriate.
The union said the arbitrator failed to consider the applicable legal principles regarding damages in lieu of reinstatement and did not provide a reasoned analysis for his determination, which it says was arbitrary. The union would have made legal arguments and called appropriate evidence regarding appropriate compensation, which it felt should have been far greater than the approximately six months of back pay that the cashier was awarded.
The employer opposed the application for a new award, saying that arbitrators have a broad mandate to resolve disputes and award remedies. The company said the arbitrator’s award included an “exhaustive recitation” of the evidence and the parties’ arguments.
The arbitrator had considered the relevant case law, and noted that not ordering reinstatement was “relatively rare,” the company argued. “What is required is that there be evidence before him upon which the Arbitrator could reach his conclusion; that he considered that evidence; and, following a reasoned analysis, reached his conclusion. His conclusion need not be correct,” the board’s decision said in presenting the employer’s argument.
The employer noted that in arriving at the period of damages, the arbitrator acknowledged that the woman had a “share of responsibility.”
The B.C. Labour Relations Board accepted the union’s argument that it was denied a fair hearing. The matter was remitted to the arbitrator to receive submissions from both sides as to the appropriateness of damages in lieu of reinstatement.
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