Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2019 January 7, 2019 ARBITRATION AWARDS 8 servers registering little in the way of void checks. As well, said Peterson, Sheehy's documentation on the void jour- nal 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 ex- perienced in such a task. Sheehy was asked by Peterson (according to notes taken by Gor- don): "Any voids not real? That you took the money?" "Yes, no more than a handful, some I don't recall," replied Shee- hy. 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 dam- aged the company and, more im- portantly, 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 ad- mitted 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 restau- rant, identified as "Mr. Saravap- adan," testified that beginning in March, the restaurant began a ser- ies 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 evi- dence 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 bal- ancing 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 "incompre- hensible" set of notes proved the employer's case was flawed, said Nordlinger. "I am concerned about the nature of the investiga- tion, particularly the lack of clarity that led to its real purpose. (Shee- hy) was never told it was in the na- ture of a discipline meeting relat- ing 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 repre- sentative, tired and under a mis- apprehension as to the nature of the investigation when he made the statement. As a result of ex- amples used by Peterson in the interview, he was led to believe that a statement would assist him in retaining his job notwithstand- ing 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 days, but he was unsuccessful for the final performance on June 10. Instead, JL was assigned to call-in reserve duty for that day. When he asked the festival or- ganizers if he could not perform June 10, they said unless he per- formed in all scheduled dates, they would all be cancelled. JL arranged for other colleagues to work for him should be called in. On June 9, JL woke up in Lon- don and felt a sharp pain in his neck. He was able to pull off his performance and later in the day he received notice from the em- ployer to report to Montreal for work at 4 p.m. the following day. JL felt his discomfort would be lessened by the next day but when he awoke on June 10, he felt "any movement would cause extreme pain." JL took some painkillers and worried about his fitness for his shift later that day. He eventual- ly booked the day off as sick leave and was later paid for that day. JL was able to complete his final festival performance that day and he later posted a social media message at 6:31 p.m. that read: "Thank you everyone!!! Great shows!!! Lots of love." On June 19, he went to his doc- tor who gave him a sick note for the June 10 absence. However, on July 20, JL's employment was ter- minated. The union, Air Canada Com- ponent of the Canadian Union of Public Employees (CUPE), grieved the decision and argued JL was legitimately injured and this was confirmed by the doctor's note. The employer countered and said the multiple efforts made to book off June 10 and the so- cial media posts confirmed JL wouldn't have shown up for work in any case. Arbitrator William Kaplan agreed and dismissed the griev- ance. "The evidence establishes that (JL) had no intention of attending work on June 10 and that his ab- sence was completely unjustified. In the circumstances of this case, where there has also been a com- plete lack of candour on (JL's) part, termination is the appropri- ate disciplinary response for what can only be described as (JL's) pre- mediated decision not to attend work if he was called in." As well, JL had a 10-day sus- pension on his record for an un- related incident, but it included a final warning, which indicated he should have been more judicious in his actions, said Kaplan. "The purpose of a lengthy disci- plinary suspension and a final warning is to bring to an employ- ee's attention that their job is in jeopardy and that exemplary con- duct is required." And by not going to the doctor until he did, that also didn't help JL's case, said the arbitrator. "It is also factually significant that (JL) waited days after his re- turn to Montreal to see a doctor to deal with a condition he described as so serious to have incapacitated him from attending at his sched- uled work but, as mentioned above, did not preclude his stage performances on June 9 and 10 ," said Kaplan. "Considered in the overall, one can only conclude that the griev- or never intended to show up for work on June 10, that this mis- conduct was serious, and that the discipline imposed was justified," said Kaplan. Reference: Air Canada and Air Canada Component of the Canadian Union of Public Employees. William Kaplan — arbitrator. Jackie VanDerMeulen for the employer. Adrienne Lei for the employee. Nov. 20, 2018. 2018 CarswellOnt 19737 Employee had 'no intention of attending work': Arbitrator < Air Canada pg. 1 < Vancouver pg. 1 Server signed confession admitting 'theft' via void checks

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