Burden of proof

While theft is always grounds for dismissal, the problem for employers is demonstrating their case in court

A recent column on honesty in the workplace mentioned that criminal dishonesty, even an isolated event, was always grounds for dismissal. That statement, while entirely accurate, needs to be examined more closely.

When the basis for dismissal is theft or similar criminal-like allegations against the employee, the law raises the level of proof from the normal civil level of balance of probabilities to something closer to the criminal level of proof.

This is due to the stigma of theft. While the civil level of proof is a balance, by contrast, the criminal level of proof requires certainty. The standard required in a wrongful dismissal theft case is that of clear, cogent and compelling evidence, and the court is to vigorously assess the evidence to ensure qualitative certainty of the result.

In other words, the level of proof input to the court in a theft case is very high. As well, a theft allegation will require the employer to prove an intention to steal on the part of the employee. Proof of conduct that is equally consistent with bad judgment is not sufficient proof of theft. In addition, the employer comes under an onerous investigation duty that must be sufficiently broad to disclose to the court the full context, nature and circumstances of the alleged theft. If the employer cannot explain the full context or circumstances surrounding the theft to the court, then it cannot prove its case.

So, the statement is true that theft is always grounds for dismissal, but the problem for the employer is proving that the act complained of constitutes theft.

A prime example of the difficulty an employer can have in proving the necessary elements to dismiss for theft, is shown in a recent BC Supreme Court decision.

This case involved an employee of 16 years of service, whose job involved extensive travel by car and who was given a company vehicle and gas card that the employer permitted him to use for a mixture of business travel and personal use. The employee had the vehicle and gas card on this basis for approximately 10 years.

The employee was transferred to Alberta and was allowed to retain the vehicle and gas card. He used the vehicle and gas card to transit back and forth between the job in Alberta and home in B.C. during his cycle of days off.

At some point, while the employee worked under these circumstances, he was directed by the employer to surrender the vehicle and gas card. He returned the vehicle but not the gas card and continued to use the gas card for his personal transit back and forth between the B.C. home and Alberta job. He kept and used the gas card on this basis for some two months after he had been directed to return it. The employer finally acted and terminated employment on the basis of gasoline theft.

The employer did not have any policy that dealt with issuing, using or surrendering gas cards.

The court found that the employee knew he was to surrender the gas card, and knew its continued use was inappropriate. But it was up to the employer to prove more than that. The lack of employer policies was damaging to the employer’s case. Because the employer did not have a written policy dealing with gas cards and did not explain properly the consequences of continued use of the gas card, the employer could not prove to the level required that the employee understood his possession or use of the gas card was unauthorized, and that the unauthorized use of the gas card could constitute theft and lead to dismissal. As well, the employer failed to properly investigate and confront the employee and allow for an explanation or further understanding.

Thus, without a policy to provide a framework, and without an investigation to give the court the full context, the employer was unable to give clear, cogent and compelling evidence necessary to prove a theft.

The failure of proof of the employer left a vacuum for the court. The court cannot perform its obligation of ensuring qualitative certainty of result in a theft case in such a vacuum. The court found that the employee certainly exhibited inappropriate behaviour, and bad judgment, but not theft. Having been dismissed for cause that could not be proven, the employee was wrongfully dismissed.

Clearly, the court was not pleased with the employee’s conduct. When the employer alleged theft, it triggered the higher onus of proof. The employer simply could not satisfy that onus.

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