Fast food firing leads to aggravated damages

March 20, 2017 Sara Forte Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Pensions and Benefits, Source Deductions and Reporting, Wages and Compensation

A recent BC Supreme Court decision finding a fast food employee was wrongfully dismissed and entitled to aggravated damages has been making newspaper headlines across the country. In Ram v. Michael Lacombe Group Inc. (c.o.b. Burger King and Burger King Canada Holdings Inc.), the Court considered the wrongful dismissal claim of Usha Ram. Ms. Ram had worked as a cook in various Burger King locations for 24 years, and was terminated for just cause after taking home a fish sandwich, fries and a drink at the end of her shift without paying for them. Ms. Ram’s claim was heard over a seven day trial, resulting in a lengthy decision.

The Court considered whether the employer had just cause to terminate Ms. Ram’s employment for dishonesty and theft, and found that it did not. In reviewing the evidence, the Court determined that Ms. Ram had not intended to steal, based on the fact that she asked her manager if she could take “a fish” and that she made no effort to conceal the food she was packing up from the manager. The Court further determined that even if this had been an intentional theft, the value of the food taken of 50 cents (after applying the employee discount) and Ms. Ram’s long and good service to the employer meant that dismissal was a disproportionate sanction.

Ms. Ram was awarded 12 months of reasonable notice based on factors, including her 24 years of service. After a detailed consideration of her work history, the Court found that Ms. Ram’s employment was continuous for 24 years despite transferring between stores operated by different corporate entities. Ms. Ram was also awarded aggravated damages of $25,000 for mental distress caused by the unfair and bad faith conduct of the employer, including the failure to give Ms. Ram an adequate opportunity to respond to the allegation.

Lessons for employers

Investigation is key when considering a termination for just cause. In this case, further investigation through questions to the manager and to Ms. Ram would have likely made it apparent that Ms. Ram had no intent to steal. The failure to take reasonable steps to investigate was also one of the grounds on which aggravated damages were awarded.

Proportionality of the penalty must always be considered. A decision made pursuant to a zero–tolerance policy will not always been supported by a judge.

Finally, it is advisable for employers to retain experienced employment law counsel when served with a legal claim by an employee. The employer was unrepresented in defending this claim, and it was clear in the Court’s written decision that this put the employer at a significant disadvantage.

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Sara Forte

Employment Lawyer at Forte Law Corporation

Sara Forte is an employment lawyer, and principal of Forte Law Corporation, based in Surrey, British Columbia. Sara advises employer and employee clients in all aspects of employment law and workplace human rights, and has focused her practice in this area since her call to the bar in 2004.Prior to attending law school, Sara worked as a human resources professional and currently holds a Certified Professional in Human Resources (CPHR) designation from BC HRMA. Workplace conflict is stressful, costly and distracting for everyone in the workplace.Sara works with her clients to identify employment law solutions to reduce or eliminate workplace conflict.Sara presents and writes frequently on employment law and workplace human rights issues. Read more.