Is “stealing” chips fair accommodation?

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A leading legal expert is suggesting the kind of zero-tolerance policy that saw a cashier fired for "grazing" food from the shelf is unenforceable and points to overzealous supervision.
“Zero tolerance policies are never absolute," Lorenzo Lisi, a partner with Aird & Berlis LLP, told HRM. "If there was a reason for that conduct, especially considering the disability, the termination would not be upheld.”

The Toronto-based lawyer among those HR professionals scratching their heads after  a cashier at a California Walgreens store was fired for eating food off the store shelf to stave off a diabetic attack -- but before she had actually paid for it.

The 18-year employee, who reported her Type II diabetes to her employer more than a decade ago,  was restocking shelves when she started shaking and sweating from low blood sugar. She opened and ate a $1.39 bag of potato chips that was in the cart. It was her attempt to pay for the food after her shift that ultimately attracted her supervisor's censure and her dismissal.

The case is now before a human rights tribunal in California, but has key lessons to offer employers across Canada, said Lisi.

Canadian courts have found that zero tolerance policies are never watertight. The employer's knowledge of an existing disability and the accommodations offered to employees because of it should have been taken into consideration.

“This is a good example of a manager not being trained well enough to deal with this,” Lisi said.

The manager has testified that he was confident in his decision because the no grazing rule had “no grey area.”

Still, had he been better trained in how to assess the facts of a situation, argued Lisi, he may have found some middle ground.

At least there should have been a process to follow so HR was involved in the investigation and final decision, the employment lawyer told HRM. “A little training could have gone a long way and saved them a lot of money.”
  • Bill Smyth on 2014-04-28 3:06:31 PM

    Given the facts, the manager's reaction is absolutely pathetic and beyond reason. He should be fired. No logic at all.

  • JoAnn on 2014-04-28 4:17:41 PM

    The Manager and not the employee should be fired. Would they rather have the employee go into insulin shock instead? There are 'exceptions' in every case and this is one of them.

  • JoAnn on 2014-04-28 4:18:28 PM

    oh, one more thing, if the article is correct, she was not Stealing!!

  • Danny G on 2014-04-28 10:57:47 PM

    Wow. Really? Hard to believe a person with even the slightest amount of common sense would do something so ridiculous as fire this poor girl. I'd love to have had a chat with this guy in my office after finding out what he did.

    I don't see how this case could actually get to the Human Rights Tribunal? Duh apologize and compensate the girl.....Lifetime supply of chips! Is the organization actually supporting his decision? Crazy...

  • John Hand on 2014-05-01 12:09:18 PM

    I worked for a grocery store that had a zero tolerance to theft. Lots of people were fired for stealing and eating cookies ftom the bakery. We covered it in their training and then complete an online orientation that covers employee theft.

    The employee in this story should have approached management immediately after eating to tell them what happened and pay for them immediately, not wait until the end of the shift.

  • Linda Buono on 2014-05-01 12:52:21 PM

    let's remember that as in most termination cases, there is more to it than is reported in a short article. As far as I know, chips are not a snack that would help a diabetic's blood sugar. We have all had situations where an employee conveniently uses a disability to cover up for an indiscretion. The facts of the case may be more than what is being reported.

  • John on 2014-05-05 11:57:33 AM

    I worked in retail and HR for many years, and employee theft is a huge problem. I cannot count the number of times that employees took candy, chocolate.... However the first questions to ask if they were caught, were do they have a medical condition such as diabetes? Do they have other accommodation needs etc? Did they try and pay for the item on their own, and before they left the building? Not that this makes it right, but it is an important fact. Do the due diligence before making the decision would be my suggestion.

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