'That's the peril an employer can fall into very easily, to go beyond the initial evidence to make the allegation'
“When an employer is dealing with potential serious misconduct, be mindful of your treatment of that employee, particularly in the initial stages of investigation, as it will be scrutinized.”
So says Victoria-based labour and employment lawyer Michael Penner of Levitt LLP, after a British Columbia arbitrator reinstated a worker with full compensation after she was fired based on circumstantial and hearsay evidence of workplace theft.
The worker was a room attendant for the Aava Whistler Hotel in Whistler, BC, since 2015. Room attendants were allowed to receive tips left by departing guests in the rooms. Room attendants who cleaned a room after guests had left were entitled to the tip left in that room.
The worker had some interpersonal conflict with co-workers and management – such as when she raised concerns about changes to assignments that she felt were unfair.
The worker was assigned to a specific area of the hotel for a six-month period, looking after the same group of rooms. In January 2024, she was assigned to rooms on the fourth floor.
Assigned rooms
The worker received a task sheet from her supervisors each day that listed the rooms to be cleaned and their status. The status determined the type of housekeeping service needed – arrival rooms had guests arriving that day, “due out” rooms required cleaning and linen change, and “stayover” rooms had guests continuing their stay.
Rooms could also be designated “carry-over,” meaning that a guest had checked out but the cleaning could be carried over to another day because the room wasn’t needed right away. These rooms didn’t appear on the task sheet and the supervisor would assign them as needed.
The worker often entered carry-over rooms to look for items or supplies if she couldn’t find them in the service closet. She also sometimes put supplies that she would need later in carry-over rooms that were close to rooms she would be cleaning and preparing. At the time, room attendants didn’t need to ask permission before entering a carry-over room and it was common practice to place any tips they found under the TV for the attendant who eventually cleaned the room.
The worker worked on Jan. 1, 2024, with a task sheet that included seven “stayover” rooms on the fourth floor. There were five carry-over rooms on the fourth floor that didn’t appear on her task sheet.
Didn’t see tip
According to the worker, a guest asked her for a new body wash dispenser. The service closet didn’t have any, so she entered room 464 – a carry-over room not assigned to her – and retrieved a dispenser. She said that she only went into the bathroom and didn’t see whether there was a tip on the table.
The worker later asked for a replacement body wash dispenser and put it in room 464. According to the worker, she also entered two other carry-over rooms looking for clean hand towels but didn’t see any tips.
The worker finished her shift without any issues and worked three more shifts that week.
However, on Jan. 2, the supervisors assigned room 464 to themselves. A front desk agent told them that the last guest had left a $40 tip, but they didn’t find one. They also entered another carry-over room that the worker had entered the previous day, room 459, and found no tip there, either.
They reported the missing tips to the general manager, who texted the housekeeping manager. Their text exchange included his comment that “we might be able to get [the worker] out of here – theft is pretty airtight.”
Alleged theft
The hotel reached out to guests who had stayed in room 464, who confirmed by email that they had left a tip of $40 or $60 “by the coffee maker.” Another employee who was a shop steward said that the worker had told her she had gone into 464 by mistake, saw the tip, and moved it near the TV.
The general manager was suspicious of this explanation, as the supervisors had entered and didn’t see the tip. He checked the entry logs of other rooms and found that the worker had entered room 459. He messaged the guest who had stayed there, who confirmed in an online message that they had left a tip. Other logs showed the worker entering carry-over rooms several times and the staff member who allegedly retrieved a replacement body wash dispenser for her didn’t recall it.
On Jan. 6, the manager of housekeeping services called the worker at home to say she was suspended and there had been a theft of a tip. The worker was upset and tried calling him back 14 times, but he didn’t answer.
The hotel conducted an investigative interview with the worker on Feb. 3. She said that she entered certain rooms multiple times to complete a task or to add supplies and denied taking any tips from the carry-over rooms.
The hotel determined that the worker had taken tips from three rooms on Jan. 1 and was dishonest about it. It terminated the worker’s employment on Feb. 6 for theft.
Just cause unproven: union
The union grieved, arguing that there was no direct evidence of the worker taking tips and the circumstantial evidence was insufficient to prove just cause.
The arbitrator noted that trust was “paramount in the hospitality sector” but the employer had the onus of proving that it had just cause for suspending and terminating the worker.
The arbitrator found that there was a tip left by guests in room 464 and someone removed it. A front desk agent told the general manager that he saw a $40 tip in the room, but he wasn’t presented as a witness and the hotel provided no direct notes from any interview with him. It was hearsay, while the worker’s evidence that she didn’t take the tip was direct, said the arbitrator in preferring the worker’s direct sworn evidence over hearsay.
The arbitrator also found that the existence of a tip in room 459 wasn’t proven, as the only evidence was more hearsay from a guest’s online message.
“Every criminal offence [such as theft] has two elements - you first have to prove the money existed and then you have to prove that she took it and removed it from the room,” says Penner. “One of the things [the employer] got caught on was they were relying on a message from the guest that the money was in the room, but they never took that extra step to verify it - you've inferred a theft occurred, but the evidence they relied on was inferential or hearsay.”
“The essential elements of proving theft were all based on hearsay and inference and the worker simply testified that she didn’t do it,” he adds. “Direct evidence is more compelling, and the worker’s job is not to solve the mystery, it's just to rebut the allegation - she doesn't have to provide a compelling alternate theory.”
Biased investigation
The arbitrator also found that it was common practice for room attendants to enter carry-over rooms that weren’t assigned to them to store or obtain supplies, so the worker couldn’t be disciplined for multiple entries into them.
In addition, the text exchange in which the general manager said that it was a chance to get the worker “out of here” showed a bias in the investigation, the arbitrator said. The reliance on hearsay evidence without investigating further indicated that the hotel was focused on the worker’s guilt, said the arbitrator, adding that the delay in interviewing the worker – three weeks after others were interviewed – impacted her ability to provide a reasonable explanation for entering the rooms, although the worker’s explanation was reasonable, the arbitrator said.
“The clincher was the text message amongst management that said, ‘This is a chance for us to get rid of her,’” says Penner. “That was the nail in the coffin, because it shades their missteps in securing the necessary evidence as seeming more deliberate, and it makes them look lazy.”
The arbitrator determined that the hotel didn’t prove that the worker stole tips or improperly entered carry-over rooms. As a result, there wasn’t just cause for any discipline. The hotel was ordered to reinstate the worker and made whole for any loss of pay and seniority.
When dealing with allegations of serious employee misconduct, the employer has to depersonalize the activity from the person and prove the activity, which can be challenging if there’s a history of antagonism, says Penner.
“Once you've proven the activity, then you can take into account the employee’s disciplinary record, but you can't allow personality to colour things,” he says. “That's the peril an employer can fall into very easily, to go beyond the initial evidence to make the allegation - you can't start with ‘The money's missing, therefore it was stolen,’ and then try to backfill the evidence to meet that conclusion.”
See Aava Whistler Hotel Limited v. Unifor, Local 3000, 2024 CanLII 72133.
