A Saskatchewan arbitrator has reinstated a hotel bartender who was fired over a missing $6.90 for a drink that wasn’t properly entered into its transaction system.
The 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 independently with a couple of servers.
On April 19, 2018, the worker was tending bar when a woman working as a secret shopper — employed with an agency contracted by the Hotel Saskatchewan to inspect the integrity of employees — sat down at the bar and ordered two drinks over the course of one hour, paying cash.
The 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. The screen faced away from her, but she saw him at the screen, after which he returned with the bill and her change. When she ordered 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 submitted her report, which stated the worker was “very nice and friendly” and rated him highly for quality of service. However, she also indicated 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. The records showed the worker had received cash for seven 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. The 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.
The HR director interviewed the worker, who described the proper sequence of service — taking an order, entering it into the POS system, serving the customer, presenting 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
The 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.” The HR director met with senior management and they decided to terminate the worker’s employment 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. The hotel 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.
The 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.
The hotel terminated the worker’s employment 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 acknowledge that he didn’t provide the hotel with money from a customer as he said he didn’t recall the transaction.
The arbitrator noted that “there are few circumstances that will result in the reinstatement of an employee, even a long-term one, who has been found to have committed theft against his or her own employer,” especially 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
The 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 actually stolen or put into the till.
“There 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 recorded as part of the total purchases at the end of the day. That cash, which rightfully belonged to the hotel, would be distributed to the employees as tip money.”
The arbitrator also pointed out that the secret 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.
The 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.
The Hotel Saskatchewan was ordered to reinstate the worker with a two-week suspension in place as discipline.
For more information see:
Invest Hotels GP Ltd. and Unifor, Local 4274 (Dismissal for Cause), Re
, 2019 CarswellSask 181 (Sask. Arb.).
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