My employer is accusing me of theft — what happens now?
You put 30 years into working at a retail job. As you are preparing for your final years before retirement, suddenly, your employer is accusing you of theft and fires you. In a moment, your experience, pension plan, vacation time and benefits are all out the window. You have to find a new job, which could be much harder with a criminal record. You will likely get paid less and have to work longer. This is what happened to one Sears employee, who was fired on the allegation she stole trial cosmetics only two years before she planned to retire.
Shoplifting is a common crime that has serious repercussions, but the breach of trust involved with a theft from an employer elevates the crime to a more serious level. Crown lawyers will usually try to get a jail sentence out of an accusation of theft from an employer. But what can you do when the dismissal might not be justified?
In this case, the employee said she was helping move products from one store to another. She had placed a box full of testers of cosmetics in the back of her car when she was confronted by store security. She was suspended with pay and then terminated days later. Sears alleged she did not have authorization to take the products from the store to her car.
The employee was acquitted of the charge of theft under $5,000, but lost half her gross annual income. She had to take a lower paying job where she had less experience. She also calculated that she lost over $4,000 per year in pension payments that she would have received if she had remained employed for the remaining two years.
A judge dismissed her civil suit for wrongful dismissal and damages on the grounds that her employee record at the company included several reprimands and infractions, and said this:
“It is not necessary for me to find that Mrs. Schnitzler was attempting to steal the items. The fact that she continually disregarded policy and acknowledged that she had disregarded it on numerous occasions satisfies me that Sears, in all of the circumstances of this case, was entitled to terminate her employment.”
Theft from an employer is an aggravating factor
Theft from an employer is not specifically listed as an offence under the Criminal Code. In cases like the one above, you could be charged with theft or fraud, as well as possession of stolen property.
The Criminal Code divides shoplifting into two categories: theft under $5,000 and theft over $5,000.
The problem with this is that a criminal record is not going to show the value of an item, meaning a conviction for a $3 chocolate bar and a $2,000 designer handbag look the same to those outside of the legal system. The maximum sentence for theft under is a two-year jail sentence. Smaller offences are met with fines and the possibility of a conditional discharge, which allows a defendant to avoid a jail sentence and only have the offence on a criminal record for three years.
If the theft is from an employer, however, a judge is more inclined to give a jail sentence because the breach of trust involved is an aggravating factor. Subsequently, they are also less likely to grant a conditional discharge.
Conditional discharges are tricky, but are even more so when theft involves an employer
Even in a theft from an employer case with the most ideal, reformed person, a conditional discharge is difficult.
One man was given a $300 fine after he stole three Playstation games from the Walmart where he worked. His father had recently died and he stole the games to provide money to a hospital in Cameroon, where his mother was gravely ill. Despite having no criminal record and good prior employment, he had to appeal his $300 fine to get a conditional discharge.
The appeal judge said the theft from an employer is an aggravating factor and “must be considered an aggravating factor in every case of employee theft.” However, because the crime was at the lower end of scale in the theft under $5,000 cases, he did not commit the crime for personal gain, he had no prior criminal record, and the theft was an impulsive, uncomplicated scheme, the appeal judge granted a conditional discharge.
Lawyers can help reduce damage to reputation from shoplifting and theft charges
Shoplifting and theft are usually an impulsive crimes committed by otherwise law abiding citizens, but the stigma can be very damaging to one’s reputation. A lawyer is able to help with a lot of shoplifting cases — they can appear in court on your behalf and fight for alternative sentencing to potentially avoid a jail sentence or a criminal record. If you need help, call us for a free consultation.
For more information about shoplifting, click here.