Author: Daniel A. Lublin
The cost to your company of engaging in a cash diversion scheme and lining your own pockets with the money over a number of years –> $12,000.
The cost of a Polaris ATV that you received as a gift from a customer for providing them with unauthorized discounts –> $5,000
The cost of being caught red handed and fired immediately after spending most of your life working for the same company –> priceless.
Gary Gabriel was the manager of a large grain and fertilizer company based in Moose Jaw, Saskatchewan. After 26 years with the company, it could be said that Gabriel certainly knew the inner workings of the business.
Having caught wind of a rumour that some employees were defrauding the company for thousands of dollars, Gabriel’s employer commenced an investigation to get to the bottom of the scheme. First, the company’s investigator interviewed one of Gabriel’s colleagues, who admitted to defrauding the company to the sum of $10,000. The elaborate scheme involved collecting cash from customers and later issuing an invoice for a product return, making it appear as the customer returned the product, when they never actually did. When questioned who the mastermind behind the operation was, the finger was pointed squarely at Gabriel, prompting the company to investigate him next.
Initially, Gabriel denied his involvement but later he fessed up and signed a statement admitting he had pocketed $2,000 by diverting cash and that he’d been given a 1996 Polaris ATV (All Terrain Vehicle). Gabriel was fired for his role in the scheme, and he sued his employer for wrongful dismissal claiming, among other things, that defrauding his company was justified because he had put in lots of overtime. But the judge was neither convinced by Gabriel, nor sympathetic to his claims that the fraud was reasonable given he worked overtime. As a result, Gabriel lost the case, his job and after 26 years with the same company, he probably lost his reputation.
When can dishonesty, fraud or theft, lead to your immediate termination and disentitle you to any form of a termination package? Although Gary Gabriel lost his case, many employees committing misconduct can survive being terminated and maintain their jobs and careers. Therefore, I offer the following recommendations to help assess whether you have a case:
Whether or not just cause exists, requires a consideration of the conduct and the context as the type of employment or the status of the employee are particularly important. Misconduct must be more serious to justify terminating a more senior, longer-service and entrusted employee who has made contributions to the company.
Is termination a proportionate response? Courts will consider all the facts and assess whether a lesser sanction than termination would have been more appropriate.