Canadian Employment Law Today

4 Canadian HR Reporter, a Thomson Reuters business 2015 Parking lot attendant fired for shady cash transactions Customer report of worker accepting cash under the table confirmed employer's suspicions from previous incidents BY JEFFREY R. SMITH A n arbitrator has upheld the ter- mination of an Ontario park- ing lot attendant who cancelled tickets in exchange for cash from cus- tomers. Gidey Haylu was a parking lot attendant for Allpark, a parking company that operated three parking lots at the Via Rail station in Ottawa. e 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. e 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. e parking manager was sometimes present to help customers and collect money from the pay stations to deposit. e 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. Employer asked customer for cash On Sept. 6, 2011, a customer and her husband parked their car in the parking lot and took a train. ey returned the same day and the customer approached a pay station and began to read the instruc- tions for payment. Haylu, who was wear- ing 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 in- serted it into the machine, which indicated the required payment was $70. e 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. e 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. e company was aware of 22 other in - cidents at the Via Rail parking lot between June 2011 and Sept. 6, 2011, where in each case a ticket for a large amount was can- celled with no indication of what happened to the car. ere were three other occasions where a ticket was cancelled and the gate was manually opened shortly after. e 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 re - ports relating to lost or demagnetized tickets or credit card difficulties were filed — which was the policy for such circumstances. e company had been aware of the prob- lem for some time but had no real proof who was behind it. When it received the manag- er'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 park - ing manager about what to do — though the customer had no recollection of him mak- ing 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 occa - sions" on the manager's instructions. e 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 sup - posed to be deposited; nor was there evi- dence Allpark actually lost money from the cancelled tickets and that they were the re- sult of dishonesty at all. Employee was dishonest e arbitrator disagreed that there was no indication of dishonesty, as there were clearly several instances of cancelled tick- ets 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 CASE IN POINT: JUST CAUSE WHEN 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. BACKGROUND

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