Vancouver airport server gets job back after incorrectly being fired for fraud

Server signed confession admitting ‘theft’ via void checks

While working at a busy restaurant at the Vancouver International Airport, a server was terminated after the employer accused him of stealing money via check voiding.
Mark Sheehy worked at the Canucks Bar and Grill for January to June 27, 2018. In May, he had been flagged as having the highest percentage of void checks for the month. John Peterson, area loss prevention manager for the employer’s parent company HMSHost, was called in to investigate.
Peterson conducted an analysis of the point-of-sale (POS) system and found some discrepancies. He testified that a common fraud technique involved wait staff accepting cash from a customer but voiding the check so the POS system would not count the money. The server would then pocket the cash, he said.
Peterson found Sheehy’s voids from the beginning of May until the day he was terminated were $956.22. The next highest was $690.18, with some servers registering little in the way of void checks. 
As well, said Peterson, Sheehy’s documentation on the void journal was inconsistent.
On June 26, Peterson and HR officer Leslie Gordon met with Sheehy. A union representative was also present, but he was not the steward and was also not experienced in such a task.
Sheehy was asked by Peterson (according to notes taken by Gordon): “Any voids not real? That you took the money?”
“Yes, no more than a handful, some I don’t recall,” replied Sheehy. When pressed further on how often he did so, he said: “These would happen two to three times per week.”
After the interview, Peterson asked Sheehy to sign a restitution agreement to pay the employer $900 to make up for his voids and the apparent theft. Sheehy did so and he was then asked to write a signed statement, which took him about an hour.
“When things got crazy in the restaurant and I was left with bills that I had no recollection of, I would err in my favour. I hope it is understood that those decisions were made to ‘balance the books’ and not for personal gain. I am so sorry that my mistakes have damaged the company and, more importantly, my opportunity to be a part of it,” wrote Sheehy.
Sheehy was fired the following day. “Further to our investigation on June 26, 2018, when you admitted to theft from the company in the value of $900, I am advising you that we are terminating your employment with HMSHost for cause effective immediately,” said a letter.
Another server at the restaurant, identified as “Mr. Saravapadan,” testified that beginning in March, the restaurant began a series of renovations and as the only sit-down establishment in the airport, Canucks was always busy. This, combined with the changes, made work stressful during the period and many other servers were having multiple issues with voids and it was often “chaotic.”
Arbitrator Karen Nordlinger upheld the grievance, despite Sheehy’s signed confession that he committed fraud. 
“Although I agree the word theft is clear, it is combined with other possibilities and I cannot conclude that it is a direct admission of theft, in these circumstances. As I read the statement, it supports his evidence that he was not aware that he was being investigated for theft. It is clearly written in the context of void irregularities. There is no clear admission of theft. (Sheehy) testified that his reference to balancing the books was to ensure the voids and the cash matched at the end of the shift. (Sheehy) denied that he was admitting to taking money in that statement.”
The manner of the interview combined with an “incomprehensible” set of notes proved the employer’s case was flawed, said Nordlinger. “I am concerned about the nature of the investigation, particularly the lack of clarity that led to its real purpose. (Sheehy) was never told it was in the nature of a discipline meeting relating to his conduct.”
And by relying on a raw union member for the meeting, the employer didn’t fulfill Sheehy’s rights, said Nordlinger. 
“(Sheehy) was represented by an inexperienced union representative, tired and under a misapprehension as to the nature of the investigation when he made the statement. As a result of examples used by Peterson in the interview, he was led to believe that a statement would assist him in retaining his job notwithstanding his mistakes. He also was told to include remorse, for the same purpose.”
Reference: HMSHost and Unite Here, Local 40. Karen Nordlinger — arbitrator. Robert Sider, Jim Boyle for the employer. Mike Biskar, Amanda Rogers for the employee. Nov. 28, 2018. 2018 CarswellBC 3177

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