Parking lot attendant awarded $16,000

Ontario court awards 12 months' notice after employer fired worker following a robbery
|employmentlawtoday.com

A parking lot attendant in Toronto was awarded one year’s notice — nearly $16,000 — after her employer fired her without cause.

Rosa Portugal started working for Car Park Management Services in 1991 at Casa Loma, directing buses in a parking lot. Later she moved to a parking lot at Ryerson University where she worked as an attendant. She received very little training.

At the George Brown lot she worked from 6 a.m. to 2:30 p.m. She was the only attendant on duty during that time, working in a booth. She collected money from drivers as they came in and provided them with a ticket.

At the end of the day, Portugal took the money home with her, counted it and gave it to her supervisor the next day.

On Friday, Sept. 6, 2002, Portugal was robbed. It was a hot day, and she opened both the window and the door of the booth in an effort to cool it down. Sometime after 2 p.m. she counted up the money and put the bills on a shelf on the inside of the booth near the window. She estimated there was about $500.

A parking lot worker from a lot across the street came over to visit Portugal shortly after she counted the money and placed it on the shelf. The two chatted for a while outside the booth.

Portugal said while she was outside the booth she saw two men enter the parking lot on foot and walk towards a truck. The truck drove up to the side of the booth and stopped suddenly. Portugal said she saw one of the men get into the passenger side of the truck and then it drove off quickly. A few minutes later, the other attendant left and Portugal went back inside her booth and discovered the money left on the shelf was gone.

She drove to the lot across the street and told the other attendant what had happened. The other attendant phoned her boss, Don Maclean, and told her what happened. Maclean told Portugal to go home and relax over the weekend and to return to work on Monday.

Maclean has worked for Car Park for 11 years. For the past seven years he has been the human resources manager responsible for, among other things, the hiring and firing of employees.

Following the theft, he asked Portugal to meet with him on Sept. 16, 2002, at which time she described the events of Sept. 6. On Sept. 17, Maclean asked a lot supervisor to do a check of Portugal’s parking lot. The supervisor found there were six cars on the lot that were not properly ticketed.

On Sept. 27, Maclean called Portugal and told her not to come into work the following Monday. At trial Maclean said by that point he had already decided that Portugal could not be trusted and he had made the decision to terminate her employment.

He said the main reason behind his decision was the lot check, though he said the robbery demonstrated that she had exercised remarkably poor judgment. He fired her on Sept. 30, citing the theft and the lot check as the reasons for her dismissal.

When asked whether or not he considered giving Portugal another chance, Maclean testified: “I did not have those deliberations with myself.”

The Ontario Superior Court of Justice said that, while awkwardly phrased, it was clear from his testimony that Maclean did not even consider whether some other form of discipline, sort of outright termination, might be appropriate in the circumstances.

The position of the parties

Counsel for Portugal argued that the Sept. 6 theft did not involve bad judgment but, even if it had, such bad judgment is not sufficiently serious to constitute cause. In light of Portugal’s decent employment record over the 11 years, the employer should have imposed some lesser form of discipline.

Counsel for the employer conceded that the unsatisfactory lot check on Sept. 17, even when taken together with previous unsatisfactory lot checks, was not sufficient to constitute just cause. But it said that the loss of money on Sept. 6 was, in and of itself, just cause for dismissal. The defense emphasized the fact that Car Park is a cash business and that trust is an essential element of the relationship between the employer and its employees. It said Portugal’s story was implausible and, as a result, the employer could no longer trust her. It said progressive discipline was not appropriate given the gravity of what happened on Sept. 6.

What the court said

The court first looked at what actually happened to the cash on Sept. 6. It said there are at least five logical possibilities:

•Portugal stole the money herself;

•Portugal colluded with the person who took the money;

•Portugal lost the money and created this story to conceal the fact;

•the money was stolen as described by Portugal; or

•the money was stolen in some other way and Portugal has fabricated the story she told her employer.

“It is important to note that while the employer has strenuously argued that the story is implausible, they have not suggested either that she stole the money herself or assisted someone else in doing so,” wrote Justice Todd Ducharme in his decision.

He said the notion she lost the money and concealed the fact, or that it was stolen in some other way and she lied about it, were possibilities that were “quite counter-intuitive.”

“Certainly there is no evidence to suggest that either of these occurred and the employer did not suggest that they had,” said Justice Ducharme. “This leaves the final option that Mrs. Portugal told the truth.”

He said he did not think that her story was entirely unplausible. He said Portugal had difficulty telling the stories at time, but he chalked that up to nervousness and her limited ability to speak English.

The next important factual issue for the court was the precise reason for Portugal’s firing.

“The evidence on this point is far from clear,” said Justice Ducharme.

Maclean testified that the principal basis for terminating Portugal was the unsatisfactory lot check on Sept. 17. He only referred to the Sept. 6 robbery in a secondary way, insofar as it demonstrated poor judgment on her part. The court said this was inconsistent with a letter given to Portugal on Oct. 1 that complained first of the loss of money and then mentioned the unsatisfactory lot check.

Therefore the court rejected Maclean’s claim that he fired Portugal primarily as a result of the bad lot check.

“I find that he was determined to fire her as a result of the loss of money and that, in ordering the subsequent lot check, he was looking for further justification for doing so,” said Justice Ducharme.

The court said Portugal demonstrated “carelessness and poor judgment” when she left the cash in plain view and left the booth, but that it did not constitute just cause for dismissal. Portugal had a decent record and there was little evidence of prior difficulties with her performance.

The court awarded her 12 months’ pay in lieu of notice. At the time of dismissal, Portugal was working 42.5 hours per week at an hourly wage of $7.50, giving her a monthly income of $1,328.13. Therefore damages were pegged at $15,937.56.

Portugal was also seeking

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damages for the way in which the dismissal was handled. But the court said she was not treated in a high-handed or insensitive manner.

“Moreover, while the dismissal was upsetting for Mrs. Portugal, she has not proven to me that, as a result of the manner of dismissal, she suffered injuries such as humiliation, embarrassment or damage to one’s self-worth and self-esteem,” said Justice Ducharme. “As a result, I find that this is not an appropriate case for

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damages.”

Disability payments and reasonable notice

One interesting twist on this case was the employer’s attempt to use disability payments made to Portugal from the Canada Pension Plan after she was terminated as a reason to reduce the damages the court awarded.

Portugal began receiving disability payments from the CPP in April 2003 of $626.29 per month and was awarded a lump-sum payment of $1,880.07 retroactive to January 2003.

The employer argued that Portugal’s damages should be reduced by the amount received during the notice period from her disability pension. To do otherwise, it argued, would permit her to receive an unfair double recovery — getting money from both CPP and the employer for part of the notice period.

In Sylvester v. British Columbia, the Supreme Court of Canada ruled that disability payments received by an employee from a plan established solely by the employer should be deducted from damages for wrongful dismissal. In Sylvester, the court found it necessary to examine the terms of the employment contract to determine whether the contract provided for a aright to both disability benefits and damages, and whether such an intention could be inferred. The court also distinguished cases dealing with employment insurance, as the benefits were statutory rather than contractual. It also specifically noted that they were not addressing a circumstance, such as here, where the employee has contributed to the disability benefits plan.

“I have no evidence before me about either the employment contract between the parties or the workings of the Canada Pension Plan disability plan, other than the concession by both parties that both the employer and employee contribute to the Canada Pension Plan scheme which funds the disability plan,” said Justice Ducharme. “This fact, as well as the statutory nature of the entitlement, takes this case out of the Sylvester line of cases. Given that the employer is not making the disability payments, the concern about double recovery seen in Sylvester is not present in this case … moreover, there are clearly distinct rationales for the two different payments. Damages for wrongful dismissal are to compensate for the lack of reasonable notice and to give the dismissed employee an opportunity to find other employment. The disability payments serve the function of income replacement once the employee is unable to work. Finally, from a public policy perspective, it makes no sense to allow the existence of statutory disability benefits to immunize the employer from the consequences of their wrongful acts.”

The court therefore refused to deduct any disability plan payments made to Portugal by Car Park.

For more information see:

Portugal v. Car Park Management Services Ltd.

, 2004 CarswellOnt 4268, 37 C.C.E.L. (3d) 68 (Ont. S.C.J.)

Sylvester v. British Columbia

, 1997 CarswellBC 1024, [1997] S.C.J. No. 58, 1997 CarswellBC 1025, 212 N.R. 51, 146 D.L.R. (4th) 207, 91 B.C.A.C. 124, 148 W.A.C. 124, [1997] 6 W.W.R. 625, 34 B.C.L.R. (3d) 1, 29 C.C.E.L. (2d) 1, [1997] 2 S.C.R. 315, 97 C.L.L.C. 210-012, 43 C.C.L.I. (2d) 1 (S.C.C.)

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