Hefty pay out for firing without hard evidence

Hefty pay out for firing without hard evidence

Hefty pay out for firing without hard evidence

Pattison Sign Group must pay almost $200,000 to an employee after an Alberta judge found they fired him for theft without sufficient evidence.

The company fired James Winfield, who had worked as a successful commissioned sales person at its Edmonton office for more than 20 years, in 2008 after he deposited a cheque that wasn’t intended for him.

The issues started with the administrative assistant noticed that the $741 cheque for the previous month’s office float had not arrived. An investigation revealed it had been  deposited in the joint account for Winfield and his spouse.

When confronted, Winfield explained that he had found the cheque on his desk and assumed it was for the expenses he was owed, and agreed to repay the money. However, this explanation did not satisfy western region assistant controller Grazia Migliore and her boss Richard Macina, now the SVP and CFO of Pattison Sign Group. 

Migliore thought it was strange Winfield showed no surprise that the cheque was in his account and had agreed promptly to the request for repayment. He also believed that Winfield was not owed any expenses at the time the cheque cleared, which heightened his suspicion.

More than a month after he had repaid the amount and discussed the issue, Winfield was summoned to a meeting with Macina but was not informed of the purpose of the meeting. Blindsided by Macina's questions, Winfield was unable to allay Macina's suspicions. Macina fired Winfield for breach of trust and dishonesty during investigation.

Winfield sued Pattison Group for wrongful dismissal.

Justice KG Nielsen of the Alberta Court of Queen's Bench found no cogent evidence Winfield had stolen and rejected the company’s just cause for termination. It was conceivable the cheque had been mistakenly left on Winfield's desk or had been placed in an envelope with a legitimate expense cheque and went unnoticed. The court documents also reveal that contrary to Macina’s belief, Winfield was owed expenses at the time.

The court awarded Winfield damages and legal costs totalling more than $180,000, plus interest. Toronto employment lawyer Howard A. Levitt said the company was fortunate punitive damages were not added.

“Other courts would have taken a dimmer view of how Winfield was treated,” Levitt said.

Levitt suggests HR stick to specific cardinal principles when dealing with serious allegations of theft and deceit:

Be meticulous in your fact finding: Had Macina known about the outstanding expense claims and cheques, his suspicions may have been allayed.

Separate investigator from decision-maker: This assures an unbiased assessment of the findings. Having Macina, who was already suspicious, wear both hats was a mistake.

Be fair to the accused: Calling an employee to an interview without advance notice of the agenda will not be viewed kindly.

Keep careful records: An employer's credibility is enhanced when it has documented every discussion and step in its inquiries.

Seal off the investigation from personalities: The judge noted that Winfield's manager apparently wanted him gone and sent an email to Macina to that effect. Curb the temptation to use suspicions of misconduct as an opportunity to get rid of an unpopular employee.

Act swiftly: The employer risks fading memories and having condoned the misconduct if it does not act promptly.