THE EMPLOYERS' EDGE
No Parking: Hotel Valet’s Termination for Unauthorized Parking Upheld by Arbitrator
In 2016 it cost $35.00 to park at a luxurious Toronto hotel for an “evening function” and $53.00 for overnight parking. So when I tell you that the hotel terminated a valet who parked his own car without paying for his entire length of employment was fired without notice, you might feel just fine about that. But that was a labour arbitration case, and those are rarely so straightforward.
In Fairmont Royal York Hotel and Unite Here Local 75 Arbitrator Paula Knopf was faced with deciding whether an employee’s termination was justified upon balancing a number of competing factors. By way of background, the hotel leased the parking area from another owner for a flat monthly rate. The hotel then charged occupants to have their cars parked by the valets. Valets accessed the parking area by swiping access “proxy” cards. The valets worked without direct supervision, and it became common for them to use the proxy cards to access the parking area to park their own personal vehicles. It should be noted that free parking was not part of the employees’ compensation bargained by their union into the collective agreement. In fact, the employer had a standard operating procedure which provided, in part “Proxy cards are strictly to be used by the valet attendants for guest vehicles only and are not for personal use or for distribution to others.”
The employer recognized that proxy cards were somehow in short supply, and in January 2016 the valets were approached and asked to surrender any proxy cards they may have on their person. The Grievor had one such card, but decided not to give it back since doing so “would have made it very inconvenient for him to park again on his next shift”.
It should be pointed out that the Grievor was a 56 year old man who lived with his wife and two children. He worked another job and while he could take public transit to work at the hotel, that would take roughly two and a half hours. And if he paid to park his personal vehicle, well, that would amount to about half of his daily earnings since he worked part-time hours. He had accrued six years of service with the hotel, but only the last two as a valet.
Upon receiving some anonymous tips through a confidential “Ethics Hotline” that valets were accessing the parking lot for personal use, the employer undertook a thorough investigation. There was no dispute that a number of valets used proxy cards to park their cars at the hotel for free, including the Grievor. And so a number of valets were terminated, including the Grievor, for what the employer considered to be conduct amounting to theft that was in violation of the Ethical Conduct Policy applicable to all employees at the hotel.
For his part, the Grievor and his union objected that termination was the appropriate disciplinary response. They argued that the Grievor merely thought he was allowed to park his personal vehicle at the hotel since senior employees did it regularly and freely. It was “an honest but mistaken belief” according to the union. Further, when directly approached by the employer, he admitted his wrongdoing and even cooperated in the employer’s larger investigation.
Grievances regarding termination of employment require the arbitrator to answer two questions: 1) Was there just cause to discipline the employee at all?; and 2) Was termination warranted in the circumstances? If the answer to question 1 is “yes” but the answer to question 2 is “no”, the arbitrator can use their discretion to substitute a lesser penalty, and reinstate the grievor.
In this case Arbitrator Knopf decided that the Grievor’s own testimony was inconsistent and not entirely credible. In particular, the Grievor could not have been honestly mistaken about parking for free at the hotel when he was asked to turn over a proxy card in January 2016 and simply chose to keep it as a matter of his own convenience. There was just cause for discipline, but the question remained whether termination was too severe.
The Arbitrator noted that a long line of cases have emphasized that employees in hotels in particular are placed in positions of trust, because they are not supervised and monitored like employees in many other workplaces. Further, this Grievor admitted his wrongdoing, but he never exhibited any regret or agreement that what he did was in fact wrong. Lastly, he was a fairly short-service and part-time employee in a workplace where many employees had very long service records. She ultimately ruled that the employment relationship could not be restored, and declined to interfere in the employer’s decision to terminate.
This may seem like a fairly clear and straightforward outcome to most people, but be assured that the outcomes of most arbitrations under a collective agreement are anything but certain. Collective agreements typically contain language restricting an employer’s ability to discipline employees except for just cause, and they also generally contain language importing a “progressive discipline” approach to managing employee misconduct. Further, many arbitrators subscribe to a “trust equity” theory, by which employees with long service and no discipline history are viewed as capable of reform and deserving of another chance to continue in employment.
If you or your business are grappling with potential disciplinary responses to employee misconduct, whether or not you have a collective agreement, the professionals at CCPartners can help assess your best options.