Roe v. BC Ferries: A trifling theft is still a theft

By Andres Barker, Lawyer.

justice.Roe

In a judgment issued earlier this year, the British Columbia Court of Appeal reversed a trial judge’s decision that a senior level employee was unjustly dismissed after giving away free food vouchers to his daughter’s sports teams.

The plaintiff was the manager of the Duke Point ferry terminal for approximately 4.5 years. During the course of his duties, he provided his daughter’s volleyball team with approximately $70 in complimentary food vouchers when they travelled by ferry to the mainland for a tournament. Following an investigation, the employer discovered he had also made a prior donation to another of his daughter’s sports teams in the amount of $120 to $130.

The trial judge determined that although the plaintiff’s action amounted to a “significant mistake”, the seriousness of his misconduct was at the lower end of the spectrum and involved a “trifling” amount. The judge also considered that there was not a great amount of prestige or non-monetary personal gain achieved by the plaintiff, and that his actions were not nefarious.

On appeal, the BC Court of Appeal declared the central issue to be whether the plaintiff’s conduct, objectively viewed by a reasonable employer in all of the circumstances, could be found to be bordering on trifling or relatively minor and therefore not rising to the level of undermining the obligations of good faith that are inherent and essential to the employment relationship.

The appeal court found that the donations were inherently done for a personal benefit with no relation to the business of the employer, and that his failure to report the gift and his use of out-of-date and untraceable vouchers amounted to a deceptive intent to conceal his actions. The court also found it significant that the plaintiff admitted during a fact-finding meeting that he understood he had overstepped his authority and breached the trust of the employer. Ultimately the court set the trial decision aside and remitted the matter back for a new trial on the basis that the justice’s reasons demonstrated a failure to follow the appropriate contextual approach for determining just cause as set out in the Supreme Court of Canada decision in McKinley v. BC Tel.

Implications for Employers and Employees

Although the court did not formally rule against the plaintiff, its strongly worded rebuke of his actions is a strong indicator of how the next justice may approach the matter. The take away for both employees and employers is that a trifling theft is nonetheless a theft. All employees, particularly those at the management level, are expected to respect their employer’s property and not treat it as their own.

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