Canadian Employment Law Today

March 11, 2020

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Canadian HR Reporter, 2020 Canadian Employment Law Today | 7 More Cases the practice of deliberately flirting with cus- tomers to try to get free drinks. This started a "heated argument" with one of the bartenders and the bartender admitted he called her out about the topic and said what she was discuss - ing was "complete bulls---." This upset Toledo — who was intoxicated at this point — and she started crying. Toledo had had enough and asked for her bill, which amounted to $86.81. Her friend took out her credit card to pay, but the regular customer offered to pay it. Toledo later testified that she was uncertain at the time if she had paid the bill due to her intoxication and state of mind, but the regular customer wouldn't let her see the bill. However, she told the bartend - er with whom she had been arguing that she wouldn't tip him. As it turned out, the bill wasn't paid, so the bartender paid the bill himself and wrote an email to the manager that Toledo had refused to pay and he took it just to get her out of the restaurant. He also wrote that he didn't like to see her applying pressure to regular customers to pay a bill. Employer cites incident as just cause The next day, a hostess at the restaurant texted Toledo to say that the manager wanted her to pay her bill from the previous night and added an "lol." Toledo replied, "lol ok." However, Toledo arrived at the restaurant later and the manager told her she had committed theft by not paying her bill. He then terminated her em - ployment, asking Toledo to sign a termination notice that stated the reasons for termination were not paying her bill the previous night and "acting in a way that could result in loss of busi- ness." Toledo signed the notice after the man- ager told her she was required to do so. Two days later, on May 19, another employ- ee texted Toledo to ask what happened. Toledo replied that she had thought the regular cus- tomer had paid the bill and she wasn't given an opportunity to pay it before being terminated for theft. Toledo then filed a claim for wrongful dis- missal, saying Coast Restaurant dismissed her without just cause. She claimed damages for lost wages and tips as well as aggravated damages for injury to her financial situation, reputation and dignity because of the restaurant's bad-faith and unfair conduct in her dismissal. The latter was supported by a doctor's note that her mental health status was impacted by the dismissal. The tribunal found that it was clear Toledo was unclear about whether her bill had been paid and had thought the regular customer had paid it — her friend thought the same. This, combined with her intoxicated and emo - tional state of mind, made it unlikely that there was any intentional dishonesty on her part, al- though it was unreasonable for her to assume a customer would cover her bill as she was an employee of restaurant, said the tribunal. The tribunal also noted that the bartender had paid the bill himself, so there was no un - paid bill owing by the next day. One of the reasons for termination on To- ledo's termination notice was not paying her bill, but this wasn't a sufficient reason for ter- mination as not only was the bill paid by the bartender, but the tone of the text exchange be- tween Toledo and the hostess the next day was lighthearted, indicating that they didn't con- sider it a serious issue and the restaurant didn't always fire employees who didn't pay their bills while visiting off-duty, said the tribunal. Employment relationship not damaged The tribunal noted that the B.C. Supreme Court had established that "just cause requires a find- ing that the worker was guilty of misconduct which made it so the employment relationship could no longer continue." However, the fail- ure to pay her bill was not intentional or deceit- ful conduct. "The nonpayment was not theft from the [restaurant's] till," said the tribunal. "Rather, [Toledo] was inebriated due to being served alcohol by another Coast employee, and she became upset at [the bartender's] confronta - tion and was confused about whether the bill had been paid." The tribunal also found that Toledo's con- duct at the restaurant when she became "tear- ful, vocal and argumentative" didn't warrant dismissal. She became intoxicated from being served by the restaurant's employees and only the two bartenders, Toledo's friend and the regular customer who joined them heard her. There was no evidence anyone else heard her or that this was harmful to the restaurant's busi - ness, nor was it part of a pattern of minor mis- conduct or poor performance, said the tribunal. The tribunal determined that Toledo's mis- conduct not only met that standard for just cause but it also fell under the category 1 classi- fication of offence in the employee handbook, meaning that was subject to progressive disci- pline, not dismissal. The tribunal determined that Toledo was wrongfully dismissed. Since Toledo's posi- tion was that of a part-time server, the tribunal found that she likely would have been able to find comparable part-time employment with- in six weeks so six weeks' pay in lieu of notice was an appropriate level of damages. Coast Restaurant was ordered to pay Toledo compensation for six weeks' lost pay and tips, equal to $2,103.96. The tribunal declined to award aggravated damages, finding that her mental health status was part of normal hurt feelings about the dismissal itself, not the man - ner of dismissal. For more information, see: • Toledo v. Coast Restaurants Ltd., 2019 BCCRT 1309 (B.C. Civil Res. Trib.). One reason for termination was not paying the bill, but the bartender paid it so there was no theft. « from RESTAURANT on page 1 Intoxicated from alcohol served by other employees CREDIT: ADSHOOTER ISTOCK

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