Boston Pizza had no cause to fire bartender who wrote off $15

Alberta court said it would have awarded <i>Wallace</i> damanges if worker sought them

The Alberta Provincial Court had harsh words for a Boston Pizza outlet that fired a worker for theft, suggesting it would have awarded Wallace damages had the worker sought it.

Michael Moyen, one busy night, served a table of 10 people who ordered between $300 and $400 worth of food and drinks. Moyen relied on the customers’ memory and honesty in determining what they’d ordered when they asked to split the bill. After they left it was discovered that $15 in orders had not been charged. Moyen used the manager’s swipe card to access the computer and write-off those items.

Write-offs and discounts were not uncommon, but employees could only do them via the manager. If the manager was busy the swipe-card was left with a trusted employee to use and workers were expected to later justify the write-offs to the manager.

Moyen was fired five days later when he was at the restaurant as a customer. The company claimed it was for theft and for disregarding company rules and policies. Moyen said that after he wrote off the $15 he got busy and forgot all about it. The court believed him, but noted its verdict did not turn on that. Dishonesty does not entitle an employer to summarily dismiss a worker. Only if the employment relationship is greatly compromised is summary dismissal allowed.

Here there was no dishonesty or criminal intent, said the court. The company’s videotape showed Moyen was not sneaky in writing off the $15. He’d done it with the employee who had been entrusted with the swipe card standing right next to him.

Moyen’s employment agreement said any amount he was short could be deducted from his pay. Boston Pizza’s computer system would have discovered any unauthorized write-off and the paycheque deduction was a mechanism whereby it could recover any losses, said the court.

The court also rejected Boston Pizza’s claim Moyen was dismissed for failure to comply with company policies and procedures. The company had strict rules on taking orders and dealing with money. But Moyen had not been given a copy of the procedures, which in any case did not cover the scenario of getting a manager’s approval for write-offs.

An employee cannot be fired for forgetting to comply with each and every rule throughout every day of his employment, the court said. That would be totally unreasonable, it said.

Moyen found another job within 10 days of being fired, and had only sought $1,495 in lost wages and tips. The court awarded him that plus all costs and fees. Boston Pizza had “embarrassed and defamed” Moyen, said the court, when he deserved to be treated with respect. The company was fortunate that all Moyen sought was vindication, as Wallace damages can be awarded when dismissal is accompanied by an employer’s unfair dealing, the court said.

For more information see:

Moyen v. D.D. Investments Inc., 2005 CarswellAlta 1645 (Alta. Prov. Ct.)

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