Date: 2008
Author: Daniel A. Lublin
Publication: Metro

Employer virtually concealed evidence that would have exonerated former employee

Men don’t plan to fail, they fail to plan.- William J. Siegel
When a Niagara Falls, Ontario, outlet of The Beer Store noticed cash shortages at the store, its response was swift: surveillance cameras were installed to monitor the employees.  Soon a number of suspects were caught on tape, one of whom was employee Douglas McNeil.   McNeil was recorded taking money from the cash register.  However, on separate portions of footage, the cameras showed McNeil placing corresponding amounts back into the register.
Despite knowing that McNeil had put the money back into the till, The Beer Store reported it as a theft to the police.  In doing so, it submitted the entire videotape, showing McNeil taking money from the register. However, it did not specifically mention to the police that the tapes also showed McNeil putting the money back.  Based on The Beer Store’s review of the footage, criminal charges were laid and McNeil was later convicted of theft and terminated with cause.
As a unionized employee, McNeil was part of a collective agreement that allowed him to challenge the employer’s decision to terminate him, by a process called a “grievance.”  During the grievance process, the entire footage surfaced, which showed McNeil replacing the money back in the register, and he was able to successfully appeal his criminal conviction.
McNeil then sued The Beer Store for the unusual claim of malicious prosecution, arguing that The Beer Store’s decision to charge him for theft was made with malice and without reasonable grounds.  At the trial, The Beer Store argued that it acted reasonably; however, the jury that decided the case disagreed.  The Beer Store was aware of the footage showing McNeil putting the money back into the register and by failing to specifically point that evidence out to the police, it had caused McNeil to suffer criminal charges and stigma.  As a result, it awarded McNeil nearly 2.1 million dollars, to compensative him for various losses he suffered during the 13-year ordeal between the original events and the trial.
This court ruling should cause employers to pause before making allegations of wrongdoing against employees.  Employers who act on incomplete — or worse, trumped up — allegations of misconduct risk flirting with a significant lawsuit.  Unionized employees should also be aware of the following distinction:

• Employees governed by a collective agreement generally may not bring workplace disputes to court and must grieve their issues with the union instead.  In this case, the court agreed that the true nature of the dispute was outside of the workplace in allowing the claim to proceed.