Customer report of worker accepting cash under the table confirmed employer’s suspicions from previous incidents
an employer dismisses an employee for cause, it should have solid evidence to prove that cause legitimately exists. Circumstantial evidence usually won’t cut it, even if there’s a lot of it. However, circumstantial evidence can raise suspicions and increase an employer’s alertness. And if the employee is guilty of misconduct, she’s more likely to get caught and give the employer the evidence of just cause it needs to proceed with dismissal.
A patient and cautious employer is likely to find itself with a better case for dismissal than one that acts too quickly.
An arbitrator has upheld the termination of an Ontario parking lot attendant who cancelled tickets in exchange for cash from customers.
Gidey Haylu was a parking lot attendant for Allpark, a parking company that operated three parking lots at the Via Rail station in Ottawa. The lots used technology to manage where customers paid for their parking fees at automated pay stations in the lot or at the exit, with no attendants usually involved. A parking attendant was available onsite to help customers who had problems with payment due to faulty or lost tickets, or an unreadable credit card. Attendants did not accept payment or carry cash, so if a customer’s problem could not be resolved, the attendant had a key with which to open the exit gate and allow the customer to leave without paying. The rule was that no employee should accept cash payment, but it wasn’t written down anywhere.
Haylu worked the evening shift at the parking lot, from late afternoon until after the arrival of the last train. The parking manager was sometimes present to help customers and collect money from the pay stations to deposit. The manager was responsible for other lots as well so he came and went as needed and often Haylu was the only employee present.
In addition to the responsibility of often working alone, Allpark’s offices were in Montreal so there was little oversight to ensure the Ottawa parking lots were run according to the company’s policies. As a result, Allpark accessed information recorded at its lots such as entries, exits — including those allowed by the parking attendant with the gate key — and payments at the pay stations.
Employee asked customer for cash
On Sept. 6, 2011, a customer and her husband parked their car in the parking lot and took a train. They returned the same day and the customer approached a pay station and began to read the instructions for payment. Haylu, who was wearing an orange vest identifying himself as an Allpark employee, came up to the customer and asked her if he could help.
Haylu took the customer’s ticket and inserted it into the machine, which indicated the required payment was $70. The customer checked her wallet and said she didn’t have that much cash so she would have to pay by credit card, though she was having difficulty because she wasn’t familiar with the machine.
Haylu asked the customer how much she had, and the customer responded she had $40. He said he could help her and she should get in her car with her husband — who was waiting in a wheelchair — and drive it to the gate. The customer did so and Haylu asked for the $40. When the customer gave him the cash, he put it in his pocket, put the ticket into the machine and the gate went up, allowing the customer to leave.
When the customer arrived at home, she was concerned she had done something wrong and called Via Rail, which gave her the parking manager’s phone number. She reached the manager the next morning and she explained what had happened. She also put her statement in writing for the manager to pick up.
The company was aware of 22 other incidents at the Via Rail parking lot between June 2011 and Sept. 6, 2011, where in each case a ticket for a large amount was cancelled with no indication of what happened to the car. There were three other occasions where a ticket was cancelled and the gate was manually opened shortly after. The total value of the cancelled tickets was $1,000.
Allpark investigated and found Haylu was the parking attendant on duty during all of the cancellations. No money was sent to the main office for these transactions and no reports relating to lost or demagnetized tickets or credit card difficulties were filed — which was the policy for such circumstances.
The company had been aware of the problem for some time but had no real proof who was behind it. When it received the manager’s report of the Sept. 6 incident, it found it followed the same pattern as the earlier cases. Allpark concluded Haylu had taken the money, both on Sept. 6 and in the earlier incidents. It terminated his employment on Sept. 12 for accepting “monies in exchange of cancelling tickets from customers.”
Haylu grieved the termination through the union. He claimed after the customer said she didn’t have $70, he called the parking manager about what to do — though the customer had no recollection of him making a phone call. Haylu said he understood it was Allpark’s policy to allow handicapped people to park for free and he should allow the customer exit without paying.
Haylu testified the parking manager asked him how much money the customer had and then said to charge her $40 and open the gate for her. He claimed he then placed the cash in the manager’s mailbox in the office and he had done the same “on many occasions” on the manager’s instructions.
The union pointed out that there was no direct evidence that Haylu was responsible for the cancelled tickets over the previous few months. It argued the parking manager was at the lot as well and he was later fired for theft after he took money that was supposed to be deposited; nor was there evidence Allpark actually lost money from the cancelled tickets and that they were the result of dishonesty at all.
Employee was dishonest
The arbitrator disagreed that there was no indication of dishonesty, as there were clearly several instances of cancelled tickets that were not paid. No reports were filed to explain any of the cancellations.
“It is reasonable to conclude that it is more likely than not that tickets were cancelled and that the parking charges relating to the cancelled tickets were never paid,” said the arbitrator. “If clients are allowed to exit the parking lot without paying the parking charges, there is a loss to the employer.”
According to the account of both Haylu and the customer, there was no doubt Haylu accepted $40 in cash from the customer and allowed her to leave when she had an amount of $70 owing, said the arbitrator. The customer was willing to pay the full fee on her credit card, but she was just having difficulty with the machine. The difference in their testimonies was that Haylu claimed to have called the manager and received instructions to take the $40. The customer denied seeing this and saw Haylu put the money in his pocket.
The arbitrator found the customer had no interest in the outcome of the case or motivation to lie, so her credibility was greater than Haylu’s, who had reason to put himself in a better light. Since the manager’s report didn’t mention anything about the call or any knowledge of the $40 before the customer reported the incident, Haylu’s credibility was low, said the arbitrator.
The arbitrator noted that while the manager was later fired for theft, he was not at the parking lot for all of the cancelled tickets. He was in charge of other lots and was only at Haylu’s lot occasionally — Haylu was the only one there during all of the incidents. In addition, it didn’t make sense for the manager to file a report to Allpark’s head office regarding the customer’s complaint if he was guilty of pocketing money for cancelled tickets — he would have wanted to cover it up, said the arbitrator.
While it was possible both Haylu and the manager were involved in the scam, this didn’t exonerate Haylu, said the arbitrator. In fact, Haylu was aware of the policy to file reports of cancelled tickets, but he did not. Also, if he truly thought the customer might qualify for free parking because her husband was in a wheelchair, it didn’t explain why he asked her to pay $40.
The arbitrator pointed out that other than the Sept. 6 incident, all the other instances of ticket cancellations were circumstantial evidence. However, the employer was aware of this and didn’t act until it had the report of the Sept. 6 incident, which justified its suspicions. The incident amounted to dishonesty on Haylu’s part and was a serious breach of the employment contract deserving of discipline. Given the likelihood that it was part of a scam that had been going on for some time and Haylu never apologized for his involvement, Allpark had just cause for dismissal, said the arbitrator.
The grievance was dismissed and the dismissal upheld.
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