Canadian Employment Law Today

February 10, 2021

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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©2021 Key Media Canada (HR) Ltd., a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under licence by Key Media Canada (HR) Ltd. CANADIAN EMPLOYMENT LAW TODAY is a trademark of Key Media Canada (HR) Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 79990 3547 RC-0001 How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE President: Tim Duce Editor: Jeffrey R. Smith Email: Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: Phone: (416) 644-8740 x 236 NAUK Subscriptions Co-ordinator: Donnabel Reyes Email: Phone: (647) 374-4536 ext. 243 THIS INSTALMENT of You Make the Call in- volves a restaurant employee who was fired two days after she had given her notice of res- ignation. Kelsi Fraser-Easton was hired by Happy Jack's Restaurant and Bar in November 2017. In the summer of 2019, Fraser-Easton de - cided that she wanted to take one-month vacation. She discussed her intentions with Happy Jack's as well as options for covering her absence. There was some uncertainty as to what was agreed, but Fraser-Easton felt confident enough to book flights for her de - sired vacation period. However, the restaurant felt they hadn't reached an agreement on arrangements yet, which led to an argument. Fraser-Easton was angry and the restaurant gave her two written warnings for her behaviour. Fraser-Easton re - sponded by giving two weeks' notice of her intention to resign from her employment. Two days after Fraser-Easton provided her notice of resignation, the restaurant learned of discussions she had had with another em - ployee. The restaurant felt the discussions were inappropriate and amounted to "un- ethical conduct" that constituted grounds for dismissal. As a result, it terminated Fra- ser-Easton's employment for just cause on July 31, 2019, before her resignation date. Accordingly, it didn't pay her any severance as per a just-cause dismissal. Fraser-Easton filed a complaint with the B.C. Employment Standards Branch alleging that the restaurant dismissed her after she had given notice of resignation and couldn't avoid its obligation to pay termination pay for events occurring after she had given no - tice. Happy Jack's argued that it only became aware of Fraser-Easton's misconduct after her notice of resignation, so it wouldn't have been able to dismiss her for cause earlier. YOU MAKE THE CALL Was the employee entitled to severance pay? OR Was there no entitlement to severance pay? IF YOU SAID Fraser-Easton was entitled to severance pay, you're right. The director of employment standards found that the dis- agreement between Fraser-Easton and the restaurant was not serious enough to con- stitute just cause for dismissal. Without just cause, the restaurant was liable to pay com- pensation for length of service. Fraser-Eaton was employed with the restaurant for about 20 months, so she was entitled to two weeks' pay or $936.37. The director also ordered Happy Jack's to pay an administrative pen - alty of $500 for breaching the B.C. Employ- ment Standards Act by not paying Fraser- Easton her termination pay within 48 hours of her dismissal. Happy Jack's appealed to the B.C. Em- ployment Standards Tribunal, but the tri- bunal agreed with the director's decision. The director concluded that the restaurant did not meet its burden of proof for just cause, regardless of the timing of the termi- nation. Even if Fraser-Easton had not given her notice of resignation, the restaurant did not have just cause for dismissal and Fraser- Easton was entitled to termination pay, said the tribunal in dismissing the appeal. In addition, the tribunal noted that since Happy Jack's breached the Employment Standards Act, it was still on the hook for the administrative penalty, making the restau - rant liable for $1,436.47. For more information, see: • Happy Jack's Public House Ltd. (Re), 2020 BCEST 94 (B.C. Emp. Stds. Trib.). B.C. restaurant worker fired for just cause after she already resigned The disagreement on vacation arrangements wasn't serious enough to constitute just cause for dismissal. The employee responded to two written warnings for her behaviour by giving her two- week notice of resignation.

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