Job lacked right ingredients for chef

Friction with assistant manager over how to run restaurant led to stress leave

This instalment of You Make the Call looks at a situation where there was confusion over whether an executive chef quit or was forced out by the management of a hotel restaurant.

Ray Evans worked at O’Doul’s Restaurant and Bar in Vancouver in 1992, first as an assistant chef and later an executive chef. His job performance was viewed positively except for one incident in 2001 for which he was disciplined. He was given a written warning and had no further problems.

Evans had ongoing frustrations at work stemming from his lack of input on the restaurant’s menu or staff. These frustrations culminated with Evans bringing a note from his doctor on May 21, 2004, requesting a medical leave of two weeks. Evans refused to discuss the situation and immediately left the restaurant.

Lacking information on why Evans went on leave and not having any suitable replacement, the restaurant placed an ad to “test the market” in case he didn’t return to work. A doctor’s report soon arrived indicating Evans suffered from “anxiety, anger, frustration, sleep disturbance” caused by disagreements with the assistant general manager over how to run the restaurant. He was also bipolar.

Evans met with the general manager on June 10, 2004 and confirmed his frustration over not having any authority and the disagreements. He indicated he didn’t think he could return to work unless he was given more autonomy. The manager expressed doubts this was possible and they would try to work out a solution.

On June 14, 2004, Evans gave his supervisors another doctor’s note saying he would require further leave for treatment until July 5. He told the manager shortly before then he wanted to return to work. The manager indicated he would be happy to have him back but it had to be under the same conditions as before.

Five days later the manager conceded it didn’t seem they could resolve matters, so he offered 12 weeks’ severance pay. This was less than packages given to others because the manager argued Evans, not the hotel, had instigated his departure. Evans had also found out about the advertisement for his position and assumed the hotel had not intended for him to return from his medical leave.

Evans claimed the meetings had been an attempt to force him to accept a severance package and the hotel had been trying to dismiss and replace him.

You Make the Call

Did the hotel's actions consitute constructive dismissal?
Was the hotel just looking after its interests to protect against the chef's possible departure?

If you said the hotel was protecting its interests because it seemed the worker was unlikely to return, you’re right.

The court noted constructive dismissal results when an employer breaches the employment contract by changing a fundamental term of employment. Evans was told he was welcome to work under the same conditions but the hotel could not accommodate his demands for increased authority. It was Evans who wanted changes and indicated he could not work under the existing circumstances.

The court also found the changes Evans wanted did not fall within the duty to accommodate a disability, since the requested changes had little to do with his bipolar condition.

The hotel treated Evans with “civility, decency, respect and dignity” despite the abrupt and mysterious way he went on medical leave, the court said. With the lack of information initially given about the reasons for his leave and his statement that he couldn’t work under the current conditions, the hotel had reason to believe Evans might not return.

Without proof of constructive dismissal, Evans’ lawsuit was deemed a rejection of his employment contract and effectively ended his employment.

For more information see:

Evans v. Listel Canada Ltd., 2007 CarswellBC 427 (B.C. S.C.).

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