By Kelsey Robertson

In Ram v. Michael Lacombe Group Inc., 2017 BCSC 212, Ms. Ram, a cook at Burger King for 24 years, was dismissed from her employment for taking a fish sandwich, a side of fries and a drink without paying. Ram sued Burger King for wrongful dismissal and was awarded 12 months’ notice, the equivalent of $21,000. She was also awarded $25,000 in aggravated damages for the manner of dismissal.

Ram admitted she took the food without paying, but said she asked the restaurant’s general manager, and was given permission. The general manager believed Ram was going to pay for the food at her next shift.

Burger King had a policy that employees were entitled to free drinks while working and otherwise received a 50% discount on food and drinks. On Fridays, the price of a fish sandwich was discounted even further. On the day Ram took the fish sandwich, the cost of the food after her discount was $1.00.

When Ram did not pay for the food at her next shift, the general manager reported the matter to the franchise owner. Shortly after, Ram had a meeting with the franchise owner and the general manager, to discuss the fish sandwich. Ram immediately apologized for taking the food and asked if she could repay the money. She was not asked why she took food without paying.

The employer interpreted Ram’s apology as an admission of guilt, and she was immediately dismissed for “just cause” for stealing. As her termination was for just cause, she was not provided with working notice of her dismissal, or compensation in lieu of notice.

Ram left the meeting in tears. She passed through the kitchen where she was questioned by another franchise owner if she had been “fired”. Ram was asked this question more than once in the presence of other employees.

Madam Justice Warren found that Ram was “wrongfully dismissed” and was entitled to reasonable notice that her employment was ending:

“Given the absence of any evidence of premeditation or attempted concealment, the absence of any formal discipline history, Ms. Ram’s excellent and lengthy record working with [the area manager], the nature of her position and her economic vulnerability as a 55-year-old woman with little education who had worked as a fast food cook for 24 years, summary dismissal would not be a proportionate sanction” (at paragraph 82)

Lessons for Employers:
In the vast majority of cases, where an employee’s conduct or behaviour is a problem, coaching followed by formal discipline ought to apply before employment is terminated.

Before deciding the appropriate disciplinary response and/or corrective action, it is important to consider all of the circumstances including:

• The seriousness of the offence in terms of the employer’s policy and obligations to others (employees, customers, members of the public, etc.).
• The employee’s past disciplinary record.
• The employee’s length of service.
• Was the offence committed on the spur of the moment, an emotional response, or thought out/premeditated?
• Was the conduct deliberate, or careless/inadvertent?
• Any unusual or interesting patterns in behaviour? (eg. Monday/Friday absenteeism, problems when working with certain other individuals or at certain times, other potential triggers).
• The employee’s personal circumstances: isolation, depression or other medical issues, economic hardship, personal or family challenges, etc.
• The employer’s past practice in this type of situation (consistency is important).

Discipline typically involves a progression from coaching, to documented coaching, to written warnings written warning(s), and in some workplaces to unpaid suspension(s,), prior to termination of employment. How much discipline is to be delivered and over what period of time, before the employer is relatively safe to terminate for just cause will depend on the circumstances of each case.

In this case, Ram admitted to taking food without paying. She had a lengthy employment history and no previous discipline. She did not conceal taking the food, lie to cover up her mistake and when confronted she apologized and offered to pay. The financial cost to the employer was $1.00. Taking all of these circumstances into account, this was not an instance where a single act of misconduct justified termination for just cause and Ram was awarded 12 months’ notice.

In awarding $25,000 for aggravated damages (a considerable amount), Justice Warren considered that Ram was accused of theft and not given an opportunity to respond to the allegation she took food without permission (there was no meeting with Ram to ask her side of events). An accusation of theft would have a negative impact on Ram’s employment prospects and on her generally (feelings of shame, embarrassment). And, in leaving Ram’s termination meeting she was inappropriately questioned by her employer in front of her coworkers, which was humiliating.

Regardless of whether an employer believes it has just cause to terminate, it is crucial that the employer treat the employee with dignity and respect. When ending employment, an employer must consider how the meeting is conducted, how the employee will get home, the reason given for dismissal (if any), whether a reference letter is provided, etc.

Our firm recommends that employers seek legal and human resources advice prior to dismissing any employee. A “successful” dismissal is one which is compliant with Employment Standards, any Employment Agreements in place, the common-law and Human Rights and does not open the door to WorkSafeBC claims or complaints. But even legally compliant dismissals can damage morale and result in claims, if the dismissal is not carried out respectfully and with care.

Veronica Ukrainetz, principal of Ukrainetz Workplace Law Group, is presenting HR Learnings from Notable Cases at the Interior Legal Symposium 2017 in Kelowna on June 12. For more information on this and other professional development opportunities, please visit cphrbc.ca.

Kelsey Robertson, Associate Lawyer, Ukrainetz Workplace Law Group, provides strategic advice to employers to assist in navigating the complexities of labour relations, employment and workplace related privacy issues and human rights. Kelsey represents employers in wrongful dismissal actions, labour disputes and human rights matters and advises employers through various aspects of the employment relationship, including hiring and dismissals, discipline, performance management and meeting the duty to accommodate. She also develops workplace policies, employment agreements, and training materials.