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Firing over fast food meal leads to rare aggravated damages award

A British Columbia court applied a common-sense approach in awarding $46,000 to a 25-year Burger King employee in a wrongful dismissal case, says Vancouver employment lawyer Richard Johnson.

The cook was fired in December 2013 for taking a fish sandwich, a medium order of fries and a drink at the end of her shift, the Canadian Press reports.

“The 55-year-old woman admitted she took the food without paying, but said she asked the restaurant's general manager and was given permission to do so,” the article says.

In Ram v. The Michael Lacombe Group Inc., 2017 BCSC 212 (CanLII), Justice Lisa Warren ruled the defendant engaged in “unfair or bad faith conduct sufficient to ground a claim for aggravated damages.” She awarded $21,000, reflecting 12 months' salary in lieu of notice, and $25,000 in aggravated damages.

“Common sense and fairness were illustrated in this case, and the franchise owner's apparent callous and high-handed attitude led to the aggravated damages award,” says Johnson, associate with Kent Employment Law.

“Additional damages such as these are very rare and difficult to get, and companies are well-advised to ensure that they weigh all factors before asserting just cause," Johnson tells AdvocateDaily.com.

The woman, who was the sole breadwinner for her mentally disabled daughter and physically impaired husband, was embarrassed and emotionally distraught by the loss of her job, according to the ruling.

Just cause can exist when an employee is dismissed for serious misconduct that is incompatible with his or her remaining on the job, says Johnson, who was not involved in the case and comments generally.

“It is very serious and has been referred to as the employment law equivalent of ‘capital punishment,’” he says.

Unlike some other types of legal matters that put the onus on the plaintiff, in these cases, the company is required to prove that it had just cause to dismiss the worker, Johnson says.

When a staff member has committed theft or lied to their boss, dismissals are often upheld by the courts, he says.

“In this case, the court took a very rational approach and weighed the conduct of the cook against the severity of the punishment, taking into account her very good, long-standing service to the restaurant chain,” Johnson says. “In other words, the court asked whether the punishment fit the alleged crime.”

He believes it is a “critical factor” that she asked for and received permission from the general manager before taking the food, even though the employer — who had a “zero tolerance” policy on theft — argued she was not told she could take the fries and drink.

“In the end, the court found that the franchise could not dispense with 25 years of good service without providing severance,” Johnson says.

“The law cannot, and should not, punish a long-term employee for potential confusion surrounding whether fries and a drink fell within the permission she received to have a free sandwich at work. The punishment must fit the infraction.”

Johnson says companies must prove their staff committed misconduct and that it was so serious, there was no room for second chances. If not, they are still entitled to reasonable notice or severance.

“If the employer is clearly attempting to get around its obligations to the employee by alleging cause, they risk paying additional damages as in Ram,” he says.

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