Date: 2009
Author: Daniel A. Lublin
Publication: Metro

Court willing to equate silence with dishonest

After moving to Canada from Ghana and graduating from Simon Fraser University, Eric Obeng soon took a job with a Vancouver area Canada Safeway store as a cashier. After seven years, he was an assistant manager at Canada Safeway’s Ocean Park store in Surrey, British Columbia. Obeng had ambitious goals at his job. He wanted to run the whole company.
Staying late at the store one evening to perform an out-of-stock count, Obeng was seen leaving with a number of bags, which some other employees thought “appeared” to contain groceries. Although none of the employees actually saw what Obeng placed in the bags, they all reached the same conclusion: Obeng had taken merchandise from the store without paying.
The next day, the staff reported that Obeng might have been stealing to the store’s manager, who arranged for an investigation into Obeng’s activities. Donald Brost (a retired RCMP Officer) was brought in to conduct interviews of witnesses and build a report.
In the course of the investigation, Obeng was told that that other staff had seen him take groceries without paying, and he was then asked to give his evidence of what happened. Obeng denied he had done anything wrong but offered no explanation for why he was seen with the bags. He later said at trial that he felt “shocked, surprised and devastated at being accused of theft.”
Mr. Brost completed his report and submitted it to Canada Safeway’s District Manager, Mark Townsend, who had to determine whether any discipline was necessary. In reviewing the report, he noticed that Obeng did not provide any explanation to contradict the reports from the staff, so he invited to Obeng to again share any information which could help explain what happened. Once more, Obeng continued to simply deny that he had done anything wrong. He was fired for theft and breach of trust. Obeng sued for wrongful dismissal, and the parties next met in court.
At trial, Justice Elaine Adair determined that Canada Safeway could not prove that Obeng had actually taken anything from the store without paying. She commented that the witnesses could not positively say they saw Obeng leave the store with anything other than his own property and that the most likely conclusion was that the staff simply misinterpreted the evidence of what Obeng had been doing.
However, by failing to explain what he was doing during the course of investigation, Justice Adair found that Obeng had not acted truthfully, thereby breaching the implied duty of honesty and faithfulness owed by him to his employer. Obeng kept quiet “in circumstances where an explanation was clearly called for and where he was obligated to provide one,” according to Canada Safeway’s policy on internal investigations that Obeng signed when he first started work, she wrote in a judgment released last month.
While lying during the course of an investigation may be deemed cause for dismissal, Canadian employees should pause given the court’s willingness to also equate silence with dishonesty. To avoid these misgivings, employees should heed the following advice:

• Review corporate policies on investigations of misconduct.
• If an investigation is imminent, request an opportunity to meet with counsel prior to disclosing evidence.
• From the outset, ensure that any mitigating factors or explanations are brought out in the open. Don’t leave them for a lawsuit.