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Snacking, sampling, grazing - call it what you like, unauthorized consumption or removal of company product by an employee is considered theft. And in the retail food industry, theft is a serious employment offense, to which termination is the usual response.

Theft and related forms of dishonesty are among the gravest charges of misconduct in any employment relationship. Such misconduct usually demonstrates an employee is so untrustworthy he or she is no longer suitable for continued employment. In the retail food industry this is particularly true. Employees often work alone or under very little supervision, and regularly deal with easily portable and consumable items. As well, stores are often very large and impossible to effectively monitor. The opportunity for theft is boundless every working day.
Arbitrators consider all employees to understand that theft or other acts of severe dishonesty will invite the "capital punishment" of termination. It follows that the willingness of an employee to engage in that conduct places his or her suitability in extreme doubt. As well, the vulnerability of an employer makes it reasonable for the employer to impose harsh penalties as deterrents against this type of misconduct. An employer in the retail food industry has to rely on employees exercising sound and honest judgment with a greater sense of responsibility than might be expected in other settings. As a result, many collective agreements contain automatic termination clauses in the event an employee is caught stealing.

When faced with a grievance over termination for theft an arbitrator will turn to the standard analysis articulated in Wm Scott & Company. The first stage of this analysis is a determination whether or not the employer has "just cause" to impose some form of discipline. Certainly, in almost all cases where a theft is proven, an employer will have just cause for some discipline.

The second stage of the Wm. Scott analysis is a determination whether the theft justifies dismissal. Here an arbitrator will consider factors such as the seriousness of the offense, whether it was premeditated or repetitive, the employee's record of service, and any previous discipline. Ultimately, an arbitrator will have to determine whether the theft has given rise to a breakdown in the employment relationship. Even in the most serious cases there is no "automatic" legal discharge. However, for the reasons cited above, termination will usually be warranted.

If termination is not warranted, an arbitrator will turn to the third stage of the Wm. Scott analysis: a determination of the appropriate level of discipline. In appropriate circumstances, even where the fact of theft is proven, arbitrators have substituted lengthy suspensions in place of termination. Mitigating factors have included mistake or confusion by the employee, the employee's inability to appreciate the wrong, the impulsive or non-premeditated nature of the act, the employee's past record, and future prospects for good behaviour. However, none of these factors will apply in all cases.
As such, employees in the retail food industry must beware: even the theft of a single chocolate bar can amount to termination. An employer's trust is not worth breaching for an afternoon snack.