B.C. arbitrator upholds dismissals, indefinite suspension of another worker
A British Columbia arbitrator has upheld the firing of two hotel bar workers and an indefinite suspension of a third after a group of the third worker’s friends and family received several free drinks.
The Hyatt Regency Vancouver is a hotel in downtown Vancouver operated by InnVest Hotel GP. The hotel features restaurants and two bars – the Mosaic Bar on the plaza level and the Grain Tasting Bar on the main level.
On Jan. 6, 2023, a group of seven women came to the Mosaic Bar and sat at the bar. The group included a bartender for the hotel who had worked there since 2012 (CS) but she was on medical leave at the time, along with her family and friends. She was friends with the bartender on duty at the time (MP), who had worked at the hotel since 2014.
The group ordered a number of cocktails which MP prepared and served. He declined their offer to pay for their drink order because a member of the group was celebrating a birthday. They insisted, so he accepted $100 on behalf of the regular bartender for whom he was filling in. However, he didn’t input any of the drinks into the digital inventory system, although he accepted part of a cash tip left by the group.
Employees have an obligation to always be honest with their employer, according to a lawyer.
Free drinks for a second night
The next night, CS went to the Grain Tasting Bar with some of the same group. She was also friends with the server who handled their table (DW), who had also worked at the hotel since 2014.
The group ordered several coffees and teas, which DW prepared and brought to them. However, none of the drinks were entered into the digital inventory system. DW said that she would take care of the drinks and the group left a tip of $40, which she accepted for herself.
On Jan. 12, management met with MP and the union as part of an investigation into the events of Jan. 6 and 7. They met with DW on Jan. 17.
Management tried to arrange a meeting with CS, but several attempts were unsuccessful. She offered to answer questions by email, but the hotel declined. It finally sent her a letter on Jan. 27 and they eventually met with the worker in May.
On Jan. 19, management held second meetings with MP and DW.
The employment law blog asks whether employees who come clean after they’re fired deserve a second chance.
Evasive at meeting with management
At the first meeting, MP and DW said that they didn’t remember the events, but at the second meeting DW acknowledged that she had forgotten to ring in the coffees and tea but said that she would never intentionally forego ringing something in. Later, at the arbitration hearing, she admitted that she hadn’t been truthful.
On Feb. 9, the hotel terminated the employment of MP and DW for providing free drinks to guests including a co-worker, which amounted to theft, as well as for being untruthful in the investigation. On Feb. 21, the hotel placed CS on indefinite suspension for refusing to meet with the hotel and answer questions about Jan. 6 and 7.
The union grieved, claiming the terminations and suspension were wrongful and unwarranted, as they all had several years of service with no prior discipline and had received no warnings that such misconduct could lead to termination. MP and DW both apologized for their lack of truthfulness in the investigation and said they had made mistakes.
The union also argued that the digital inventory system was supposed to be used for managing inventory and not for monetary purposes.
An Ontario court upheld the firing of a worker after video surveillance footage and the worker’s failure to explain his actions supported a conclusion of theft.
Experienced employees should know better: arbitrator
The arbitrator found that both MP and DW were long-term, experienced employees who understood both the promo policy and that drink orders should be entered into the digital inventory system. Training on the promo policy – a free drink for someone celebrating a special occasion – was verbal but included all employees.
It was reasonable for MP to provide a promo for the customer with a birthday, but not for 11 drinks in total for the party, said the arbitrator, adding that not entering them into the digital inventory system saved MP from having to get the promos approved by a manager. DW also had discretion to provide promo drinks, but she was also required to enter them into the system, said the arbitrator.
The arbitrator also found that MP and DW failed to be honest during the investigation. Their misconduct could not be characterized as mistakes because MP served 11 drinks and DW seven, with each one an opportunity to correct themselves and enter it into the digital inventory system, the arbitrator said, adding that it was too late for an apology after their dishonesty through two investigative meetings.
“The trust that the employer had placed in them had been irreparably harmed not only by their failure to adhere to the promo policy… but also their dishonesty during the investigative process,” said the arbitrator.
The arbitrator added that MP and DW denied the hotel the value of the drinks, affected the inventory system, and received a small financial reward in tips for their misconduct. Even though they had no prior discipline, the arbitrator noted that in the service industry, discharge was appropriate for a first offense the irreparably harms the employment relationship.
As for CS, the arbitrator found no valid reason for her to refuse to meet with management as part of the investigation. She had no evidence that her medical condition interfered with her ability to participate and the hotel had a legitimate business interest in accounting for the losses from the two nights she was at the hotel bars.
The dismissal of MP and DW along with the suspension to CS were upheld. See InnVest Hotel GP Ltd. and UNITE-HERE (Pizarro), Re, 2023 CarswellBC 2110.
