I’m neither qualified nor allowed to give you legal advice. So, my first suggestion is that you talk to a lawyer.
If you want my personal opinion, which again is NOT legal counsel, based on the scenario you describe and not knowing all of the facts: You may have a tough time justifying termination for cause. No doubt, theft is a just cause offence. But there are some problems here: First of all, unless I’m missing something, taking a couple of boxes of tea seems like a fairly minor and harmless act of theft. While it may warrant a warning, termination seems excessive. On the other hand, a relatively minor offence could rise to the level of just cause if the employee has a history of discipline for committing the violation, has received repeated warnings or suspension and/or is on a last chance agreement. But absent some other aggravating factors not mentioned in your Q, if this is a first offence, termination isn’t likely to hold up.
Please be careful here. It sounds like you may be overreacting a tad. And if you’re wrong about just cause, you risk not just ESA liability but wrongful dismissal claims. But again, I don’t know the entire situation. And it sounds like you have a problem employee who deserves discipline–even though it may be less than termination. That’s why it’s so important that you talk to counsel before pulling the trigger on this one.
Hope that helps. Glenn
