An arbitrator at the B.C. Labour Relations Board has served a victory to a waiter accused of theft at a busy and “chaotic” restaurant at Vancouver International Airport.
A recent decision from a labour arbitrator has vindicated server Mark Sheehy and reinstated him in his job at Canucks Bar and Grill.
The establishment’s parent company, Host International of Canada, argued that Sheehy admitted to stealing hundreds of dollars by voiding items on some of his customers’ bills over the six months he worked there — and pocketing the difference.
But Sheehy denied the accusations, and arbitrator Karen Nordlinger sided with him.
The decision reveals some of the pressures staff were under at the busy restaurant, as well as the methods the company took to investigate what it guessed were thefts.
In her decision, Nordlinger said it wasn’t clear what exactly Sheehy confessed to, because the company never specifically told him he was being investigated for theft.
Sheehy told the board he thought he was just admitting to mistakes he’d made placing orders and balancing his till in the tumultuous work environment — including some for which he paid out of pocket while he was still on probation.
The restaurant was undergoing major renovations at the time, which stressed some of the staff to the point of tears, the decision said.
Nordlinger also noted in her decision that Sheehy’s supposed confession took place after he’d been awake for 24 hours, working split shifts.
Labour lawyer Stephen Gillman says he’s not surprised Sheehy won the grievance.
“Our courts often call it the capital punishment of employment law when you terminate with cause. When you think about it, you’re left with no reference letter, no record of employment, no severance, no [Employment Insurance],” Gillman said.
“Arbitrators and judges in our courts look at these cases in a very serious light and they need that clear, cogent evidence.”
CBC News requested comment from both Host International of Canada and Sheehy. They did not respond.
Chaos and frequent mistakes
According to the decision, Sheehy worked at Canucks between January and June 2018.
During that time, the busy establishment — the only sit-down restaurant in the Vancouver airport’s U.S. departures section — was undergoing renovations.
Another restaurant server testified that, at the time, Canucks had a new general manager and all new systems, including floor plans, table numbers and point of service terminals for servers to punch in orders.
This often led servers to make frequent mistakes, according to the decision. It was stressful for many of them, the waiter said — for some, to the point of crying.
During that time, the company’s loss prevention manager, based in Las Vegas, noticed an unusually high number of voids at the restaurant.
This piqued his interest, according to the decision, because voided items on bills can sometimes be a sign of theft — if the customer has paid in cash, the server can keep the difference and it won’t be accounted for.
Despite being a 10-year veteran in the service industry, Sheehy had the most voids — 10 per cent of the total.
Meeting notes ‘incomprehensible’
When the loss prevention manager and a human resources manager finally met with Sheehy in late June, the waiter had just worked a shift that started at 4:30 a.m., after working the night shift the day before.
Another issue Nordlinger highlights in her decision is that the notes taken at the meeting were “virtually incomprehensible” and omitted large parts of the conversation.
“Any voids not real? That you took the money?” was one such question, to which Sheehy is noted to have replied, “No more than a handful.”
At no point during the interview did either manager tell Sheehy he was accused of theft.
The decision says Sheehy felt increasingly threatened as the interview progressed. He denied making fraudulent voids and taking any money.
Signed statements problematic
Sheehy did sign a written statement and a restitution agreement after the meeting, but Nordlinger took issue with those as well. They too were vaguely worded, she said.
The waiter signed both under pressure from the manager, Nordlinger noted, and admitted to his mistakes so he could keep his job.
The next day, Sheehy was suspended. The day after that, he was fired with cause. Sheehy contacted his shop steward, and eventually chose to file a grievance with his union, Unite Here Local 40.
The arbitrator ruled in Sheehy’s favour. Union president Mike Biskar told CBC News Sheehy has been reinstated in his job at Canucks since then.