Stubborn Restaurant Owner Pays Dearly in Wrongful Dismissal Case

Peter worked as a server at a high-end steak house for about four-and-a-half years and he had finally put aside enough money to take his dream vacation.

He wanted to take a six-week vacation to Australia. In the summer of 2019, he submitted a written request for vacation for the six-week period. His boss approved it.

Tickets were bought and plans were made. The vacation was to start at the end of January 2020 and extend into mid-March. Of course once the plans were made Peter was excited and spoke regularly and excitedly to his co-workers about the upcoming trip. Everyone knew about it.

The big day came and Peter decided to stop by the restaurant on his way to the airport to collect his gratuities for the last week. By this time, there was a new general manager.

She took Peter into her office and printed out an “exit form.” She told him he had to sign it because he was required to resign because of the extended duration of his vacation.

Peter objected, but she said it was non-negotiable. Reminding her that the vacation and leave of absence had been approved had no effect. Peter asked her whether his employment would be guaranteed upon his return if he signed the resignation. She said it would. Peter had to get to the airport so he signed, got his tips and left.

After he departed, the general manager checked off the box on the form that said “leaving the country or relocating” and added a handwritten note “coming back” underneath that box. She also checked the box for “rehire recommended.”

A week before Peter’s vacation was to end in Australia, he emailed the general manager asking how he could get back on the schedule when he returned. The employer did not respond and the next day Peter confirmed in an email the date he was available for his first shift.

The assistant general manager wrote back and asked Peter to come in and meet with the general manager the day after he got back. Peter reminded him that the general manager had said he could get his job back but he was a little bit nervous and asked if everything was OK. According to the assistant general manager, it was fine and just proper procedure.

The next day was March 12, 2020. Peter received an email from the general manager indicating that he should quarantine because of the emerging COVID pandemic and their meeting would be delayed until Friday, March 27. She noted that “all staff companywide that had recently visited overseas are being asked to kindly self-quarantine for a minimum of one week.”

Of course, by March 20 the restaurant was shut down and the pandemic was in full swing.

When Peter spoke to the general manager in May, she said that when things started up again, Peter was welcome to return. She did mention that she was not authorized to rehire anyone until all the employees who had been at work the day of the shutdown had been offered their jobs back. Peter was a bit miffed because he did not consider himself a new hire.

In September, Peter inquired again as to when he could return to work. The response was that they were only at 50 per cent capacity and they were still hoping to bring Peter back at some point. Peter continued to be stonewalled. It emerged when this matter went to court that by February of 2021 management had already decided not to hire him back.

When Peter sued, the employer tried to claim that he voluntarily resigned. The judge found that Peter had established clearly and unequivocally that he never wanted to or intended to resign. He was, in fact, dismissed.

Although the employer had never said anything to Peter about his performance while he was working there, when Peter sued for wrongful dismissal, suddenly his employers claimed that they had just cause to terminate him because of his very bad attitude. The allegation came out of nowhere and the judge saw it for what it was: a spurious attempt to save money.

Peter was awarded 14 months pay-in-lieu of notice after his four-and-a-half years of employment. It should be noted that this case was from British Columbia and their notice periods can be quite generous and do not reflect what an employee in Ontario — or in fact any other province — would receive.

It is clear from the judgment, however, that the employer had annoyed the judge. They used their full discretion to award lost wages and gratuities which was over $6,000 a month in total. The judge also awarded $20,000 in punitive damages for the very shoddy way that Peter had been treated.

It is hard to believe the employer ever chose to take this matter to trial. It could have offered Peter three or four months pay and probably received a release in exchange.

Perhaps they thought they had the might but they were not in the right.

This article was originally published by The Hamilton Spectator.