Question: Whether you agree with the arbitration decision and Why? And would you propose a different outcome. Please explain.

Case Study as the below:

The hearing of this matter was held in Toronto on April 11, 2018, February 19, June 17, August 6, October 2 and October 10, 2019, and by way of video conference on January 15 and February 17, 2021.

This is a discharge case. The Employer is a luxury hotel situated in downtown Toronto (hereinafter referred to as the Employer or the Hotel). The Grievor was employed as a Valet. His job involved assisting guests upon their arrival and parking their vehicles in the parking spaces reserved for the Hotel's guests. The Grievor was terminated after it was discovered that he had been parking his own vehicle in the guest parking lot without paying. The Grievor does not deny this. He was one of many Valets who were doing the same thing. The issue in this case is whether his discharge was just.

The facts are relatively simple and little is in dispute.

Parking space in downtown Toronto is notoriously expensive and often difficult to find. The Hotel leases a parking area in a building adjacent to the Hotel for the use of guests. When guests arrive at the Hotel and wish to park their vehicles, the Valets greet them and then drive their vehicles into the parking area leased by the Hotel. Hereinafter this space shall be referred to as P6. The Valets enter and exit P6 by swiping an access or "proxy" card that has been issued by the owner of the parking lot. The Hotel is not charged according to the number of guests' vehicles that are parked. Instead, the Hotel pays a flat monthly rate for the space. It is the guests who are charged for parking. At the time relevant to this case, guests were charged $35.00 for "evening functions" and $53.00 for overnight parking.

It is undisputed that the Valets are trusted to be able to work without supervision. Supervisory staff do not monitor, patrol or check the parking area. Valets are on their own when they take control of guests' vehicles, many of which are extremely valuable and may contain costly or precious contents.

The training of Valets includes some formalized introductory materials, a video, "peer training" and 'shadowing'. The Employer witnesses asserted that there were also many regular meetings when the use of proxy cards was discussed. The Guest Services Manager testified, "I wasn't saying 'don't park your cars on P6' because I trusted my staff." She assumed they would use "common sense" and that they would have been told when they were hired that they could not use the proxy cards to park their own vehicles.

The Hotel has a Code of Ethics designed to "maintain a workplace that is respectful, productive and protects the safety of Colleagues and Guests". As part of the Code, employees are told that they must report suspected unethical activities to their managers or to an "Ethics Hotline". In March of 2016, the Ethics Hotline received an anonymous communication alleging that a Valet, who was not the Grievor, was parking his car in P6 without paying. An investigation was launched. The allegation was not substantiated and nothing further was done about it until April 13, 2016. On that day, another anonymous communication was sent by email to several managers who had responsibility for the Valets. The email reads, in part:

It has been brought to the attention of many of the drivers that the valet atmosphere and harmony has been disrupted by false accusations of drivers stealing from the Valet department or

parking their cars in P6. This is an all-outlie, and an attempt to have some of the great employees

canned from their jobsbecause of an individual wanting to capitalize on that. The one making the

accusations is in fact the guilty party of literally parking their car for over a year,every shift in

P6.

This email named the Grievor as the "guilty party", provided a picture of his car in P6, accused him of "stealing" and concluded, "Please do something about it . . . . This is a coalition of concerned colleagues bring this matter to your attention so we our department can go back to the harmonious environment it used to be." [sic]

Upon receipt of this information, the Hotel immediately called in the Grievor to question him about the allegations. He arrived at the meeting expecting to be commended for being the "top" Valet in January and February. However, when he was told about the accusations, he immediately admitted that he had been parking his car in P6 since he started working at the Hotel. (It is understood that he meant since he had been working as a Valet.) At that point, he had been a part-time employee of the Hotel for close to six years, but only a Valet for the previous two years. His explanation for parking in guests' spaces was

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that the more senior Valets were doing the same thing. He named four Valets in particular, including the one who had been named in the original Ethics Hotline complaint.

The Grievor's response to the allegations made management realize that the Hotel had a "bigger problem". An investigation was launched into the 16 full-time, 18 part-time and six casual Valets. The investigation led to the discovery that nine Valets had been using the Hotel's proxy cards to park their personal vehicles for free in P6. They were all interviewed. Everyone other than the Grievor admitted that they knew it was wrong to park their own vehicles in the lot without paying. Several denied that they had done so. All of those nine Valets, including the Grievor, were discharged.

This hearing initially involved many of those Valets. The Employer devoted days of this hearing explaining the details of the investigation and how it had determined which Valets had been abusing their proxy cards. This evidence was required because the Union, as is its right, put the Employer to the strict proof of its case. Ultimately, the Union did not dispute the accuracy of the Employer's conclusions. Therefore, the details of how the allegations were proven do not have to be detailed in this Award.

However, it is important to the narrative to explain the steps that the investigation took. In order to determine who might be parking their own vehicles in the lot and using the proxy cards to enter and exit without paying, the Employer had to obtain the video surveillance records from the parking lot's owner. Those records are retained for only two weeks. Three of the Hotel's management employees then spent a full week matching the hours of videos with Valets' schedules and their assigned proxy cards to determine if and when they drove their own vehicles in and out of the lot. The process was painstaking and tedious. The evidence was conclusive, connecting the other Valets and the Grievor's shifts to the use of the proxy cards. The evidence also included videos and "screen shots" of the Grievor in his car entering and exiting the lot using a proxy card, thereby avoiding having to pay for parking.

The evidence revealed there was often little control over the number or use of proxy cards. Valets were issued proxy cards that they could use multiple times a day. There was also an extra stock of cards located in the Valet's office. While there was an expectation that the proxy cards should be turned in at the end of each shift, it was common practice for the Valets to keep them on their own person or in their lockers.

These loose arrangements led to concerns about proxy cards going missing. The parking lot owner then demanded that the system be changed. Each vehicle was supposed to be attached to a single proxy card. The new process was set out in a Standard Operating Procedure that each Valet was supposed to follow when using the proxy cards. The Procedure included the following directions:

Valet attendants are responsible for the use of proxy cards.

Proxy cards are to be attached to the key chain of guests' keys to secure the card to match the appropriate vehicle.

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 purpose of this new Procedure was to keep track of the proxy cards. Any lost or missing cards would potentially result in lost revenue. This new system was supposed to be communicated by supervision to the Valets in shift meetings.

The Union's only witness was the Grievor. He described having been hired into the Valet position and working on a part-time basis on the evening or overnight shifts. He said his training consisted of being tested for his driving skills on all manner of vehicles and for his ability to manoeuvre them into the Hotel's guest parking spaces. He claimed to have no recall of being shown any policies or procedures. The proxy card system was explained to him by other, more senior Valets.

The Grievor denied ever seeing the Standard Operating Procedure or being aware of it in his years as a Valet. The Employer was unable to prove that the Grievor was ever given a copy. The Employer witnesses did testify that a copy of the Proxy Card Procedure was posted on a communications board in the Valets' office, alongside their schedules. The Grievor testified that he never saw it and asserted that all the Employer's witnesses were "lying" when they claimed that Procedure was posted in plain sight for the Valets.

The Grievor drove his own car to work virtually every shift because he lived a 2 hour bus ride away from the Hotel and had a second job. Driving enabled him to get enough sleep during the day. He admitted using his proxy card to enter and exit. Initially, he testified that no one had ever told him that he could do that. When asked why he thought he could park in P6 using the proxy card and not paying, he responded, "Because I observed the senior Valets. When they came to work, they went straight to P6. I just followed the lead of the senior Valets." He admitted that he never saw any members of management doing the same thing. He testified that he thought that being able to park for free was one of the privileges of being a Valet.

It was clear from the Grievor's evidence that he was surprised by his termination. He believed then, and continues to believe, that his admission about parking in P6 and his naming of other Valets doing the same thing would lead the Employer to treat him differently than the ones who denied parking in P6. The Grievor has suffered financially since his termination. He is 56 years old. He is married and has two adult children still living with him and his wife. He has not been able to replace the income he was earning from the Hotel. He has been struggling to maintain his mortgage and car payments.

Unfortunately, the Grievor's evidence became much more complicated when he was cross-examined. Although he had initially testified that no one had ever told him that he could park for free in P6, he later claimed that when he was being interviewed for the Valet position, he asked if he could park in the guest parking area and the Valet Manager told him he could park "for free" if there was any empty space available. The Grievor said that he thought that the Manager was either joking or trying to trick him. So he waited a few weeks, during which time he observed the other Valets parking in P6 and using their proxy cards to do so. As a result, the Grievor said, "I just assumed it was OK". He said he did not discuss this with anyone or seek clarification. He continued to park this way for the next two years.

It must be mentioned at this point that the Grievor's claim that he had been told by the Valet Manager that it was "OK" to park for free in P6 is something that had never been suggested in the previous seven days of hearing. The Grievor also claimed at one point in his testimony that he had mentioned this to the managers who interviewed him back in April 2016, as part of the investigation. However, nothing in any of their notes refers to this claim, nor was this claim put to them in the course of their testimony.

The Grievor was adamant that he believed that being able to park overnight for free was a privilege accorded to Valets. Although the overnight parking charges amount to close to half of a Valet's wages for an overnight shift, the Grievor did not feel that he was doing anything wrong because he knew that the Hotel rented the spaces for a fixed monthly fee. Since the Hotel was being charged the same fixed rate whether the spaces are filled or not, the Grievor said that he assumed that his occupying an empty parking space caused no harm to the Employer. The Grievor admitted that he knew that no Hotel employees other than the Valets had the same "privilege".

The Grievor's evidence became even more complicated when he was asked about his use of the proxy cards. He admitted that he knew those cards were valuable. He acknowledged that he understood that he was expected to return it at the end of each shift. He explained that he took his proxy card home with him every night, even though he knew there was often a shortage of cards. He also volunteered information about attending a meeting in January 2016 when the Guest Services Manager and Assistant Guest Services Manager spoke to the Valets about the Hotel's concern about missing proxy cards. The Valets were asked to "surrender" any proxy cards they might have on their person at that time and they were told that the cards were only to be used for guest vehicles. While the Grievor had a proxy card in his pocket during that meeting, he admitted that he did not surrender it. He explained that surrendering the card each evening would have made it very inconvenient for him to park again on his next shift. He did not seek clarification about his parking privileges from anyone after that meeting and he continued to park in P6, assuming that nothing had changed.

Cross examination of the Hotel's witnesses suggested that some supervisory staff were also taking advantage of the opportunity to have free parking. However, that suggestion was not borne out by any evidence. No one other than the Grievor was called as a witness for the Union and he said that he never saw any managerial employee parking in P6 without paying. Further, all the Employer witnesses, including the Valets' supervisors, asserted that they were completely unaware of the fact that the Valets were regularly using the proxy cards to park their own vehicles for free. Therefore, condonation did not become a factor in this case.

The only other evidence to note is that the Parties' Collective Agreement contains a comprehensive set of provisions relating to conditions, compensation and benefits for the employees in this bargaining unit. Nothing in the contract provides the benefit of "free parking" to Valets or any other employees.

The Submissions of the Parties

The Submissions of the Employer

The Employer stressed that this case must be analyzed in the context of it occurring in the hotel sector, where trust is imperative for a viable employment relationship. It was pointed out that the allegations against the Grievor only arose as the result of an anonymous email received by management naming him specifically. Prior to that, there had been no suspicions against the Grievor. It was acknowledged that the Grievor immediately admitted that he had been using the proxy card to park for free for far longer than the investigation revealed and that he had also named other Valets who were doing the same thing. It was said that this information obligated the Employer to conduct a thorough and principled investigation that involved a great deal of human resources and that revealed that the Grievor was one of many Valets who had been using the proxy cards to park for free, as alleged. The Employer considered that parking without paying amounted to 'theft' and that it was in violation of the Ethical Conduct Policy applicable to all employees of the Hotel.

Turning to the reasons the Grievor gave for his actions, the Employer's counsel described the Grievor's rationale as, "A creation of only [his] imagination that has no basis or grounding in the reality of the situation and cannot in any respect justify his parking for free on P6 and using his proxy card." It was stressed that the Grievor is someone with "relatively short service". The Employer emphasized that the Grievor has failed, at any point, to acknowledge that what he did was wrong or to take responsibility for his actions. It was said that the Grievor's admission that he had been parking for free is far different from admitting that what he did was wrong. Further, the Employer argued that the Grievor was not a credible witness because his explanations were inconsistent or were offered up, for the first time, during his cross-examination, three years after the events took place.

The Employer argued that the Grievor's claim that he believed he could park for free because 'others were doing it' should not be accepted because it could open the door to widespread abuses. It was also stressed that there was no rational basis for the Grievor to believe that he could park for free at any point.

However, it was said that even if the Grievor was given the benefit of the doubt and if it was accepted that he might have mistakenly believed that he could use his proxy card to park, his own testimony revealed that after the January 2016 meeting of Valet staff, he knew that he was expected to "surrender" his proxy card and that the cards were only to be used for guests. Therefore, it was stressed that the Grievor knew from January 2016 that his parking in P6 was contrary to the rules and yet he continued to do for every shift until he was caught. This was said to remove any reasonable justification for the Grievor's actions.

The Employer described the Grievor's conduct as a fundamental breach of duty to act honestly and in good faith, akin to theft and thereby justifying termination. Given that Valets work independently, need to be trusted and that the Grievor has consistently failed to acknowledge that what he did was wrong, it was said that the employment relationship is irreparable. The Employer relied on the following line of cases that support the notion that in all but extraordinary circumstances discharge is appropriate in the hospitality sector when there has been a breach of trust or theft: Brown and Beatty, Canadian Labour Arbitration, Chapt. 3:5110; Delta Chelsea Inn v. Hotel Employees Restaurant Employees Union, Local

75 v. H.E.R.E., Local 75002, CarswellOnt 5063, 111 LAC (4^th) 22, 70 C.L.A.S. 287 (Surdykowski); Delta

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Chelsea Inn v. Hotel Employees Restaurant Employees Union, Local 75, 1998 CanLII 18116 (ON LA) (Albertyn); Marriott Corp. of Canada Ltd. v. CUPE Local 2291, 1996 CarswellOnt 6156, CLAS 414 (Simmons); UNITE HERE, Local 75 v. Fairmont Royal York Hotel, 2012 CanLII 19247 (ON LA) (Trachuk); UNITE HERE Local 75 v. Four Points Sheraton Meadowvale, 2016 CanLII 106869 (ON LA) (MacDowell).

The Submissions of the Union

The Union did not assert that the Grievor had an entitlement to free parking. The Union also accepted that there were policies and procedures in place that would prevent Valets from accessing free parking spots. However, the Union asserted that these policies were never clearly communicated and that the Grievor had an honest but mistaken belief that he could park the way he did. It was submitted that the important issue in this case is whether the employment relationship with the Grievor has been irrevocably damaged. It was repeatedly stressed that while a breach of trust or dishonesty are often considered grounds for discharge in the hotel sector, this is not automatic.

The Union pointed out that although the Grievor had worked at this Hotel for six years, he had relatively low seniority compared to the other Valets and it should be understandable for him to have "followed their lead" when it came to using the proxy card to park. It was also stressed that the Grievor has been open and forthright about that fact from the outset, setting him apart from the other Valets who obfuscated or denied parking until they were confronted with screen shots exposing their lies. It was also submitted that the Grievor should be credited with assisting the Employer in its investigation by naming others.

The Union took strong objection to the Employer's characterization of the Grievor's conduct as being akin to "theft". It was suggested that the Employer lost no revenue by the Grievor parking in an empty space. It was also argued that the Grievor's conduct should not be compared to the conduct of the individuals in the cases cited by the Employer who had tried to conceal their misconduct. The Union stressed that the Grievor had always been open about what he was doing and that the practice was shared by many over a long period of time. While the Union did not suggest that the conduct has been condoned by management, it was suggested that the openness of the practice supports the plausibility of the Grievor's claim that he had an honest belief that "it was OK" to do it.

The Union submitted that the Grievor should be accepted as being an honest and credible witness whose story "hangs together". In particular, it was stressed that it was the Grievor himself who admitted in cross-examination that he had been asked to surrender his proxy card, that he failed to do that and that he continued to park in P6 even after hearing that proxy cards could only be used for guests. These admissions, volunteered in cross-examination, were said to exemplify the Grievor's honesty and to indicate that he can be trusted if reinstated.

The Union stressed that there was no dishonest intent by the Grievor. The Union suggested that this should be considered to be a case of bad judgment, rather than dishonesty. Alternatively, it was suggested that if it is found that some discipline may be warranted, the Union argued that discharge is disproportioned in all the circumstances and that a lesser penalty would achieve the objective of deterrence. The Union asked that the case be analyzed on the basis of the principles set out in Canadian Broadcasting Corporation and Canadian Union of Public Employees (1979) 23 L.A.C. (2d) 227 (Arthurs) [CBC and CUPE]. The Union also relied on the following authorities to counter the Employer's assertion that discharge is appropriate in these circumstances: Glynnwood Retirement Residence and S.E.I.U., Local 1 (Dominguez) (2011), 108 C.L.A.S. 283 (Brownlee); Delta Toronto East and U.N.I.T.E.

H.E.R.E., Local 75 (Hum) (2008), 170 L.A.C. (4^th) 93 (Beck); Canada Safeway Ltd. v. U.F.C.W., Local

2000, (1997) 61 L.A.C. (4^th) 1 (Larson); National Grocers Co. Ltd. and Teamsters Union, Local 419

(1983) 11 L.A.C. (3d) 193 (Langille); U.N.I.T.E. H.E.R.E., Local 75 v. Fairmont Royal York Hotel (2012)

216 L.A.C. (4^th) 159 (Trachuk); General Aviation Services Ltd. v. I.A.M., Local 2413, (1980), 25 L.A.C. (2d) 54 (Prichard); Loeb Inc. v. U.F.C.W., Local 175, 1998 CarswellOnt 5671 (Pineau); and Loblaws Supermarkets Ltd. and UFCW, Local 1000A (Strong), Re 2013 CarswellOnt 2577, 114 C.L.A.S. 44, 231 L.A.C. (4th) 66 (Solomatenko).

The Reply Submissions of the Employer

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The Employer began by agreeing that discharge is not automatic in cases of dishonesty, but stressed that discharge is the presumed response in the hotel sector, absent extraordinary circumstances which were said to be lacking in this situation. The Employer also agreed that Arbitrator Arthurs' approach in CBC and CUPE, supra, would be an appropriate way to analyse this case, but argued it would lead to a different result than the one proposed by the Union.

The Employer objected to the Union's suggestion that the use of the empty guest parking spots caused no financial loss to the Employer. It was said that parking for free should be considered to be akin to a hotel bartender taking alcohol or a room attendant expecting to use an empty hotel room for free, thereby depriving the Hotel of the revenue that an honest person would have paid for the benefit.

The Decision

Since both Parties agree that the proper analytical approach for this case was set out by Arbitrator Arthurs in the case of CBC and CUPE, supra. Accordingly, that approach will be followed. It mandates consideration of the following factors:

(1)bona fide confusion or mistake by the grievor as to whether he was entitled to do the act complained of;

(2)the grievor's inability, due to drunkenness or emotional problems, to appreciate the wrongfulness of his act;

(3)the impulsive or non-premeditated nature of the act;

(4)the relatively trivial nature of the harm done;

(5)the frank acknowledgement of his misconduct by the grievor;

(6)the existence of a sympathetic, personal motive for dishonesty, such as family need, rather than hardened criminality;

(7)the past record of the grievor;

(8)the grievor's future prospects for likely good behaviour, and

(9)the economic impact of discharge in view of the grievor's age, personal circumstances, etc. Factors (2) and (6) are not relevant.

The first factor is the most important one for this case. If the Grievor had an honest but mistaken belief that he was entitled to park for free, his situation would be far different than if he was trying to avail himself of something that he knew he had no right to enjoy for free.

From the moment the Grievor was confronted by management about the allegation that he had been parking for free, he admitted it. Indeed, he admitted that he had done so since he began as a Valet on the overnight shift. He has also consistently said that he did this because he thought he could, by virtue of the fact that so many other, more senior Valets were doing the same thing. If this had been his only evidence, it would be easy to accept it and perhaps absolve him of blame. I agree with the Union that the evidence did not establish that the Standard Operating Procedure for the use of proxy cards was clearly communicated to the employees. It is also obvious from the evidence that many other Valets had been parking in the guest parking for free, using the proxy cards to do that for years. Therefore, one can be sympathetic to the claim that a junior Valet might believe that he could do the same thing. That, coupled with the Grievor's cooperation during the investigation, would suggest that the employment relationship should be reparable.

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However, the Grievor's testimony casts significant doubt about the reliability of his claims and the viability of his continued employment. First, it was very problematic for the Grievor to initially assert that he had never been told by anyone that he could park for free and then claim, for the very first time in mid-cross examination, that he had been told he could do that by the Valet supervisor who hired him. This evidence was extremely troublesome because, had it been raised earlier, it is certain that either Party's very experienced and able counsel would have addressed it. However, this claim came as a surprise to everyone. Secondly, it contradicted the Grievor's own evidence, given only moments earlier when he had said that no one had ever told him that he could park for free. This inconsistency cast serious doubt on the reliability of his testimony.

It must also be noted that it is difficult to see how anyone could sustain a belief that Valets were authorized to park for free. Even the two anonymous tips that alerted the Employer to the parking issue referred to the practice as "stealing". Therefore, it is clear that many of the Valets considered parking for free to be violations of the Code of Ethics and perceived the practice as being akin to "stealing" from the Employer. Given that perception, it is hard to conceive how other Valets could have thought that the practice was authorized. Indeed, free parking was worth $ 53.00 overnight. The other Valets who triggered the investigation did not assume that this benefit was available to them as well. Therefore, the more plausible explanation is that the practice continued only because no one was being caught.

However, for the purposes of this Award, it is best to take up the Employer's suggestion to give the Grievor the benefit of the doubt and accept that he may have initially believed that he could use his proxy card to park his own car. However, even on that basis, he cannot claim that he believed this to be "OK" after January 2016. By his own admission, he attended a meeting at that time when the Valets were told to surrender their proxy cards and that the cards could only be used for guests. The Grievor heard that, understood that and failed to turn in his card or stop using it to park his own vehicle. His only explanation for that was that it would have been inconvenient to have to park with a new proxy card each shift.

Therefore, taking the Grievor's case in the best light, from January until April 2016 he continued to park in the Hotel guest parking for free, knowing that what he was doing was contrary to the specific directions that had been given to him by management. Accordingly, this cannot be viewed as a case of honest mistake or even bad judgment. The Grievor made a conscious choice to disregard two specific directions of management in order to continue benefiting from the proxy card that gave him access to the free and very convenient parking.

Accordingly, it must be concluded that the Employer has met its onus of proving just cause for discipline in this case. Therefore, the real question becomes whether discharge is appropriate. This brings in the other factors established by Arbitrator Arthurs.

The Grievor's conduct cannot be considered to be impulsive. Even taking, but not accepting, his belated claim that he was told that he could park for free when he was hired as a Valet, the Grievor said that he took this as a joke or a trap. This indicates that the Grievor realized that free parking was a privilege that might be too good to be true. He wanted to wait to see if he could do that without getting into trouble. He said that after watching others parking for free with impunity for two weeks, he followed suit. That indicates a deliberate and conscious choice. It suggests that he waited to see if he would get caught. But more importantly, he made the second mistake of deciding to defy the direction to surrender his proxy card in January 2016 and he continued to use it for himself, rather than restricting its use to guests only. This conduct takes his actions out of the realm of impulsive or isolated misconduct.

Another consideration is whether this caused harm to the Employer. The Union is correct in asserting that there is no evidence to suggest that any guest was inconvenienced. Further, the Employer does pay a flat fee for the use of the parking space. Accordingly, the fact that the Grievor's vehicle parked in an empty space did not add to the Employer's cost for the rental of the space. However, there is validity to the notion that the Employer was deprived of income. Employees are permitted to park in the lot, if they pay. Undoubtedly, few employees would be able or willing to pay close to half of their wages for one shift to park in that lot, especially when there is much less expensive public parking immediately adjacent to the Hotel. However, in theory, the Employer lost the potential of $53.00 in revenue from each Valet, including the Grievor, who failed to pay for overnight parking.

A factor in the Grievor's favour is that he did acknowledge, from the outset, that he was using his proxy card to park for free. This sets him apart from all the other Valets who denied it and were later exposed by the investigation. As Arbitrator Langille properly pointed out in National Grocers and Teamsters, supra, a frank acknowledgment of misconduct is important in assessing the appropriate response to misconduct. However, as the Employer asserted, while the Grievor acknowledged the facts, he has never admitted that he did anything wrong or accepted any responsibility for his conduct. Instead, he has asserted a 'colour of right', claiming that he should not be faulted for doing what others were doing. This is very problematic in an employment setting. Absent evidence of an employer's condonation of a practice, which does not exist in this case, one cannot defend misconduct by saying the more common or blatant the misconduct the less culpable it becomes. This would open the door to chaos. There is wisdom in the old adage, 'two wrongs do not make a right'. Despite the Grievor's many opportunities to indicate that he realizes that his actions amount to misconduct, he has never shown any indication that he understands the problematic nature of his choices. Therefore, while the Grievor's admission of the facts weigh in his favour, his lack of acknowledgment of misconduct remains problematic and significant.

In determining the outcome of a case like this, a grievor's record of employment is very important to consider. This was ably set out by Arbitrator Trachuk in two cases between these same Parties, supra. Her 2012 decision summarizes the point:

In determining whether to substitute a penalty, the seriousness of the grievor's offence must be weighed against any mitigating factors. There are several mitigating factors in this case. The most significant is the grievor's long service. Both parties referred to the following passage from my decision in Fairmont Royal York Hotel and UNITE HERE Local 75, (supra).

The most significant mitigating factor an employee can call upon in seeking reinstatement is long trustworthy service. If an employee has built up significant "trust equity" an arbitrator may take that into consideration in determining whether the relationship of trust has been mortally damaged or whether the grievor has the potential for rehabilitation. The arbitrator in Marriott Corp. of Canada, supra, refers to the banking of "equity" over the course of long service at paragraph 81 and I find that a useful way of articulating the role of an employee's record and service in these situations. Other mitigating factors such as those set out in Re Canadian Broadcasting Corp. and C.U.P.E. (1979), 23 L.A.C. (2d) 227 (Arthurs) quoted in New Dominion Stores (supra) at Page 275, may also be considered.

The concept of "trust equity" refers to the relationship that an employer and an employee have built up over a number of years. Thus, it may reflect both the grievor's record and his or her service. If the employee can claim that he or she has long service and has never been disciplined, he or she can claim to have earned very significant "trust equity". However, even if an employee can only claim a discipline free record for the period of a sunset clause, long service demonstrates a relationship of sufficient trust with the company to maintain employment for that period of time. The longer an employment relationship has continued, the greater the possibility that it can survive a violation of trust. That is a factor that is weighed in determining whether an employment relationship has been "mortally damaged".

I adopt this clear and thoughtful decision between the same Parties to this case. It calls for consideration of the Grievor's "trust equity". The Grievor worked at the Hotel on a part-time basis for six years. This does not amount to six years of seniority or even six years of service. His little more than 3 years of actual service makes him a relatively short-term employee. However, it cannot be forgotten that he also has a clean record of employment and that he was "top Valet" for two months of 2016. Those factors, combined with the Grievor being hired into the Valet position in 2014, point to the fact that he was a trusted and valuable employee until the events giving rise to this case. As Arbitrator Trachuk points out, the longer the employment relationship has lasted, the greater the possibility for the restoration of the employment relationship following a loss of trust. In this case, the Grievor had created some, but not a significant amount of "trust equity".

This brings the analysis to the question of whether there are future prospects of the good or trustworthy behaviour by the Grievor. Counsel for both Parties agreed that a breach of trust does not automatically portend future misconduct. Each situation must be looked at individually. However, it must also be looked at in the context of both the Grievor's circumstance and the environment where he seeks reinstatement. In the case at hand, the environment is a hotel. The Parties have cited many cases where other arbitrators have discussed the special nature of hotel employment. In some of those cases, employees have been reinstated to positions in hotels, even when their conduct amounts to a breach of trust. In UNITE HERE, Local 75 v. Four Points Sheraton Meadowvale, supra, Arbitrator MacDowell has summarized the applicable caselaw methodically and given us the benefit of the following wisdom:

204.while each dismissal must be examined on its own unique facts and reinstatement is potentially available for all acts of misconduct, however grave, theft or similar dishonesty in a hotel environment, place extreme strain on the employment relationship. Where an employee admits dishonesty or (more importantly) is found to have acted dishonestly in that environment, it is important to consider whether there are mitigating facts consistent with a maintenance or restoration of the essential element of trust.

205. The arbitral authorities also acknowledge that dishonesty, by its very nature, usually results in irreparable damage to the employment relationship; and that, in the hotel industry especially, the opportunity and the temptation for employees to commit dishonest acts is very great. Thus the relationship is generally acknowledged as having a "fiduciary cast", wherein all employees can be taken to understand that theft or other similar acts of dishonesty will invite dismissal (which is what the Handbook in this case says as well) - including for the casual pilfering, so easily engaged in, that is commonly known as "grazing".

206. Accordingly, the imposition of dismissal for acts of dishonesty in that employment setting, responds to two related assumptions. The first is that employees can be taken to know that their employment is seriously at risk if they engage in that kind of behaviour - hence, the willingness of an employee to engage in it, places his suitability in extreme doubt. The second factor is the high degree of deterrence that employers in the industry are entitled to demand from arbitrators when offences - breaching the underlying trust relationship - are committed.

207. That is: the vulnerability of the employer makes it reasonable to impose relatively exacting standards and to put a heavy price tag on departures from those standards, so as to blunt the temptation of other employees who might be inclined to commit similar acts. Otherwise, "everybody does it" will become a workplace reality.

It is important to note that the extract above emphasizes the "vulnerability" of hotels to dishonesty and the danger of allowing "everybody does it" to become a defence.

Finally, the determination of the outcome of this case demands consideration of any mitigating factors. The Grievor is 56 years of age. He worked two part-time jobs to support his family. The loss of this job has had significant impact on his ability to maintain car and mortgage payments. He has been unable to replace this job. No doubt the impact of COVID -19 on the hotel industry and the city as a whole has added to his economic struggle. These are the inevitable and all too common impacts of a job loss. There were no other mitigating factors put forward.

After applying the "Arthurs" analysis to the evidence in this case, it must be concluded that misconduct has been established and that this is not an appropriate situation to exercise the arbitral discretion to reinstate. While the Grievor's actions did not deprive the Employer of any direct costs, he got the significant benefit of free parking. That is a privilege or benefit that is not contained in his Collective Agreement or available to any other employees. Giving the Grievor the benefit of any doubt about how this started, he knew, as of January 2016, that he was not allowed to park for free. Yet he continued to do that anyway. He has not shown any indication that he understands that this amounts to misconduct or shown any regret for his actions. To make matters worse, he accused the Employer witnesses of lying when there is absolutely no evidence to corroborate or substantiate that claim. He is a relatively short service, part-time employee in a workplace where many employees have very long service records. The Grievor is to be commended for admitting the facts to the Employer as soon as they were discovered andfor aiding the Employer in the investigation. He may be a fundamentally honest person. It is for that reason that his name has not been used in this Award. There is no reason to impede his future prospects of employment in a different workplace.

But for the Grievor's very problematic testimony and his failure to acknowledge any wrongdoing, it might have been possible to contemplate reinstatement. However, as the Employer pointed out, all positions in a hotel are positions of trust. The Grievor has given little indication that he can be trusted in the future if he thinks that he can be absolved for following others down a path that he even suspected to be wrong. This was exacerbated by his failure to follow the clear directives of management after he was made aware that what he was doing was wrong. This type of behaviour makes it too difficult for him to be trusted by this Employer in the future. Therefore, it is impossible to conclude that this employment relationship can be restored.

For all these reasons, despite the vehement advocacy on his behalf, the grievance must be dismissed.

Dated at Toronto this 3rd day of March, 2021

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Paula Knopf - Arbitrator