Canadian Employment Law Today

Canadian HR Reporter, 2019 Canadian Employment Law Today | 3 Cases and Trends A low bar for dismissal at Saskatchewan hotel Failure to enter drink sale in point-of-sale system or account for missing $6.90 not enough to provide just cause for bartender's dismissal BY JEFFREY R. SMITH A SASKATCHEWAN arbitrator has rein- stated a hotel bartender who was fired over a missing $6.90 for a drink that wasn't prop- erly entered into its transaction system. e worker was a head bartender at the Hotel Saskatchewan in Regina, hired in 1994. His job involved serving food and drinks to customers, inventory control, cleaning the bar area, and following proper customer payment procedures. He worked mostly in- dependently with a couple of servers. On April 19, 2018, the worker was tending bar when a woman working as a secret shop- per — employed with an agency contracted by the Hotel Saskatchewan to inspect the in- tegrity of employees — sat down at the bar and ordered two drinks over the course of one hour, paying cash. e price of each drink was $6.90. When the secret shopper ordered the first drink, the worker entered the order on the bar's point-of-sale (POS) screen behind the bar. e screen faced away from her, but she saw him at the screen, after which he returned with the bill and her change. When she or- dered the second drink, she saw the worker go back to the POS screen. However, this time he returned with her change but no bill. After the secret shopper left, she submit- ted her report, which stated the worker was "very nice and friendly" and rated him highly for quality of service. However, she also indi- cated there was no bill with the second drink and the worker didn't immediately enter all the orders into the POS system. When the agency submitted the report to the hotel, the HR director investigated the transactions from that night. e records showed the worker had received cash for sev- en transactions during his shift, but the secret shopper's second drink wasn't on the list and the transaction for the first one hadn't been closed until a couple of hours later. e total cash from those transactions equalled the amount the worker had provided at the end of his shift, so the HR director concluded the worker hadn't entered the drink into the POS system and hadn't put the $6.90 into the till — the cash drawer could be opened without entering anything on the POS system. As the head bartender, the worker was responsible for the cash on the shift, though the key to the till was accessible to all staff. As was normal practice, he distributed all cash from the till that was in excess of the receipt tally among the staff as tip money. e HR director interviewed the worker, who described the proper sequence of ser- vice — taking an order, entering it into the POS system, serving the customer, present- ing the bill, collecting payment, and closing the bill. When the HR director mentioned the transactions with the secret shopper, the worker said it had been a busy time and he may have missed entering the order for the second drink. He also suggested he could have given the bill to another server or he might have put the cash in the till where it was divided up as part of the tip money. Employer lost trust in worker e HR director felt the worker hadn't given a real explanation as to why the order hadn't been entered into the POS system and didn't like the worker's attitude that it was "no big deal" and "mistakes happen." e HR direc- tor met with senior management and they decided to terminate the worker's employ- ment for theft — whether he took the money for himself or divided it with the tip money, it was the hotel's money and it wouldn't have been detected if the secret shopper hadn't filed her report — and for not following the hotel's rules that required bartenders to enter orders into the POS system. e ho- tel also believed that he pretended to enter the second drink order in the POS system — since the secret shopper observed him going through the motions — but didn't actually do it, which showed deception and supported the belief that it was intentional. As a result, it couldn't trust him to perform his duties without supervision. e hotel also investigated a discrepancy with the processing and payment the secret shopper reported from the same night with a drink served by a female server, but the hotel was unable to establish which of the two on duty had handled the transaction. e hotel terminated the worker's em- ployment on May 4, 2018. He was surprised and angry, arguing that he was "not the kind of person to steal $10" and he would be more careful if given another chance. He didn't ac- knowledge that he didn't provide the hotel with money from a customer as he said he didn't recall the transaction. e arbitrator noted that "there are few circumstances that will result in the rein- statement of an employee, even a long-term one, who has been found to have committed theft against his or her own employer," espe- cially if the employee denies it. However, the onus was on the hotel to establish that the worker actually stole the money in question for there to be just cause for dismissal. No proof where the missing money went e arbitrator found that there was no doubt the worker failed to enter the transaction for the second drink into the POS system based on the secret shopper's report. However, the system for hotel employees to collect their tips — tallying the cash payments on the receipt list and dividing all the excess cash among the staff — made it impossible to determine if money from a transaction that wasn't entered into the POS system was ac- tually stolen or put into the till. "ere could never be a cash surplus even if, for example, an employee inadvertently forgot to enter a purchase into the POS and simply put the cash for the purchase into the till," said the arbitrator. "Even though this cash would properly belong to the hotel, in the absence of an entry of the transaction into the POS system, it would not be record- ed as part of the total purchases at the end of the day. at cash, which rightfully belonged to the hotel, would be distributed to the em- ployees as tip money." e arbitrator also pointed out that the se- cret shopper didn't observe what happened to the cash the worker collected from her. In addition, though she reported the worker went to the POS system after the order, there was no indication he was trying to deceive — he had to go there to get her change. e arbitrator determined the worker failed to enter the secret shopper's second drink in the POS system and the hotel didn't receive the money for it. However, it was also likely the payment ended up in the till and was distributed to staff as tip money, rather than being stolen by the worker. While the worker's failure to follow procedure was worthy of discipline, the small amount of money involved and the fact the hotel hadn't really enforced the sequence of service in the past meant termination wasn't appropriate. e Hotel Saskatchewan was ordered to reinstate the worker with a two-week sus- pension in place as discipline. For more information see: • Invest Hotels GP Ltd. and Unifor, Local 4274 (Dismissal for Cause), Re, 2019 Car- swellSask 181 (Sask. Arb.).

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