Happened under tense union employer relationship
A casino was justified in firing two long-time employees after a bartender served multiple tequila drinks to an off-duty bartender without fully charging for them, according to an arbitrator.
On Nov. 12, 2014, bartender Mariela Jara was off duty and seated at the Baccarat Casino in Edmonton, but she was performing union business. Bartender Stephanie Krykowski served Jara four drinks but only charged her for two drinks and a meal.
The company alleged the practice of “sweethearting” (providing a benefit to a fellow worker against the rules) happened and thus damaged the trust relationship between employees and employer.
Arbitrator Andrew Sims ruled in favour of the casino.
The policy implemented called for bar and wait staff to enter all drinks into the point-of-sale (POS) system. Only managers are allowed to approve drinks as complimentary or spillage.
The pair were eventually suspended before being asked to attend meetings to explain their actions. During the questionings, the employer felt they were being evasive and not fully honest with their answers.
The terminations also took place as the company and union were heading into new contract negotiations, which were expected to become contentious. Both Jara and Krykowski were shop stewards.
And previous incidents showed the relationship between Jara and Krykowski, and immediate supervisors, was strained. Arguments were repeatedly happening between union representatives and management, said Sims.
While the events occurred during a very strained labour-management relationship, Sims said he did not think “the initiation of this investigation or the subsequent decision to terminate the grievors are a result of anti-union animus.”
The investigation seemed to follow standard procedure, he said: “There is a difference between a very poor and confrontational working relationship and proof of anti-union motivation for a particular act of discipline. The one may, but does not automatically, lead to the other.”
And while there may have been undue emphasis placed on trying to get the two women to contradict each other and on the recorded evidence than there was in providing any opportunity for explanation, Sims was “not persuaded that any of this altered the results in terms of the conclusion of just cause or the penalty imposed.”
He also did not accept that the two women did not understand, or were not sufficiently trained in these new policies.
“Rather, my conclusion is that they had formed the view that the union should have been much more involved and they were entitled to resist new policies and not change past practice until, in their opinion, that had taken place.”
As a result, Sims did not find that termination was too harsh a penalty or that the substitution of a lesser penalty was justified.
“While I accept the value of progressive discipline generally, this is a case where the offence is such that proceeding straight to termination was justified. Neither grievor accepted the occurrence or the seriousness of what took place. In Ms. Krykowski’s situation, she maintained, even in the face of clear video evidence, that most of the drinks were not doubles, and she offered no excuse for her failure to enter drinks on Micros as required. Ms. Jara’s defense is that she was unaware throughout that she was getting more alcohol than she ordered or that she was not being billed appropriately. I do not find that credible.”
Well-accepted case law supports the view that sweethearting is tantamount to theft, said Sims, “and that where this occurs, particularly in the face of clear policies designed to prevent the practice, usually results in termination.”
Reference: Gateway Casinos & Entertainment and the United Food and Commercial Workers Canada Union. Arbitrator — Andrew Sims. Dwayne Chomyn, Jessica Thomson for the employer. Kara O’Halloran, Andrew Buchanan for the union. June 15, 2016.
