Firing an employee for theft without hard evidence can be costly (2024)

Suspicion is no substitute for hard evidence. That is the lesson Pattison Sign Group learned when it terminated James Winfield, who, measured by his six figure annual income, was a successful commissioned sales person at its Edmonton office for nearly 25 years.

When employees had expenses, the Toronto head office couriered reimbursem*nt cheques to Edmonton where they were left for the employee on their desk or in their mail slot.

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One day, Patricia Sperling, the administrative assistant noticed the payment for the previous month’s $741 office float had not arrived. This triggered an investigation that revealed the cheque had found its way into a joint account for Winfield and his spouse.

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When confronted by Grazia Migliore, assistant controller for the western region at Pattison Sign Group, Winfield acknowledged there were unaccounted for monies in his account, which he readily agreed to repay when asked. He speculated the cheque had been inadvertently left on his desk and, because he had been owed some expense cheques, he said he had likely not paid attention to the fact it was not made out to him when he gave it to his wife to deposit.

The explanation did not satisfy Migliore and her boss, Richard Macina, now senior vice-president and chief financial officer at Pattison Sign Group. Migliore thought it strange Winfield showed no surprise the cheque was in his account and had unquestioningly acceded to the request for repayment. Macina’s suspicions Winfield had misappropriated the cheque were heightened by his belief no expense claims were owing to Winfield at the time the cheque cleared.

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After consulting with senior management, it was decided Macina would meet with Winfield to obtain his version of the events. If Macina did not find the explanation credible, Winfield would be handed a letter of termination. Should Winfield’s story be deemed plausible, he would not be dismissed.

More than a month after he had repaid the amount and discussed the issue, Winfield was summoned to a meeting with Macina but was not informed of the purpose of the meeting. Blindsided by Macina’s questions, Winfield was unable to allay Macina’s suspicions. True to plan, Macina fired Winfield for breach of trust and dishonesty during investigation.

Winfield sued Pattison Group for wrongful dismissal.

In rejecting Pattison’s defences for just cause for termination, Justice KG Nielsen of the Alberta Court of Queen’s Bench said he found no cogent evidence Winfield had stolen. It was conceivable, he said, that Sperling had mistakenly left the cheque on Winfield’s desk or it had been placed in an envelope with a legitimate expense cheque and went unnoticed. It also turned out, Mancina was wrong in his belief there were no outstanding expense claims.

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The court awarded Winfield hefty damages and legal costs. Pattison was fortunate punitive damages were not added. Other courts would have taken a dimmer view of how Winfield was treated.

This decision underscores the cardinal principles that should be adhered to in dealing with serious allegations of theft and deceit:

Be meticulous in your fact finding: Had Macina known about the outstanding expense claims and cheques, his suspicions may have been allayed.

Separate investigator from decision-maker: This assures an unbiased assessment of the findings. Having Macina, who was already suspicious, wear both hats was a mistake.

Be fair to the accused: Calling an employee to an interview without advance notice of the agenda will not be viewed kindly.

Keep careful records: An employer’s credibility is enhanced when it has documented every discussion and step in its inquiries.

Seal off the investigation from personalities: The judge noted that Winfield’s manager apparently wanted him gone and sent an email to Macina to that effect. Curb the temptation to use suspicions of misconduct as an opportunity to get rid of an unpopular employee.

Act swiftly: The employer risks fading memories and having condoned the misconduct if it does not act promptly.

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