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Trifling Theft May Warrant Summary Dismissal
January 13, 2015

In its first decision of 2015, the BC Court of Appeal overturned a finding of the BC Supreme Court that BC Ferry Services Inc. did not have just cause to terminate a senior employee who improperly provided his daughter’s sports team with food and beverage vouchers worth approximately $200.

The dismissed employee was the Terminal Manager of the Duke Point ferry terminal, a position of significant responsibility and trust, and frequently, the most senior employee on-site. The employer has complimentary food, beverage and dessert vouchers which it uses purely for purposes of “customer recovery”: situations where an error has been made or a passenger has been inconvenienced in some way. As Terminal Manager, the employee was authorized to distribute such vouchers pursuant to the Employer’s policy respecting customer service recovery. Despite this, the manager on at least two occasions distributed beverage and dessert vouchers to his daughter’s sports team. Upon learning of this, the employer commenced an investigation, resulting in the manager being terminated for just cause. The manager then commenced an action for wrongful dismissal.

The matter was heard by way of summary trial. The trial judge determined that, even accepting the employer’s evidence as true, there was no just cause to dismiss the manager. In reaching this conclusion, the trial judge purported to apply the contextual approach to just cause terminations outlined by the Supreme Court of Canada in McKinley v. BC Tel, 2001 SCC 38, which provides that a court must assess whether the employee’s misconduct gave rise to a breakdown in the employment relationship. In doing so, a court is tasked with considering the nature and seriousness of the misconduct, the circumstances in which the misconduct occurred, the nature of the particular employment contract, and the position of the employee. Applying this test, the trial judge found that the manager’s misconduct (as alleged by the Employer) did not lead to an irreconcilable breakdown of the employment relationship based on the “trifling” monetary value of the vouchers, the lack of personal benefit to the manager, and the manager’s lack of attempt to deceive the employer.

The Court of Appeal overturned the trial judge’s decision, noting that the value of the vouchers was of little consequence. According to the employer’s evidence, the manager misappropriated company property for his own personal and reputational benefit. He knowingly used the vouchers for a purpose not related to customer recovery. Further, the manager’s failure to obtain prior approval or report his actions constituted deceit. As the most senior employee at the terminal, the manager was responsible for handling large amounts of cash and occupied a position of significant responsibility and trust. Given the nature of the manager’s position and the serious nature of his alleged misconduct, the Court of Appeal found that the trial judge had committed an overriding and palpable error by incorrectly applying the contextual approach mandated in McKinley. As the trial judge made no findings of fact with respect to the allegations, simply accepting the employer’s version of events for purposes of his decision, the Court of Appeal remitted the matter back for a new trial to resolve any conflicts in the evidence.

This decision is significant in that it clarifies that the contextual approach applied by the courts must account for the nature of the misconduct as it relates to an employee’s position. To this end, the monetary value of the misappropriation of company property is of little consequence. The nature of the misconduct and how it relates to the employee’s position is what is most important.

Roe v. British Columbia Ferry Services Ltd., 2015 BCCA 1

Questions relating to the content in this article may be directed to Paul Fairweather