'Ensuring there's a clearly outlined process for managers to follow on site is critical,' says expert after $90,000 award involving Black + Blue restaurant
For many restaurant employers, employment decisions are made quickly, informally and on the fly. A recent B.C. Supreme Court decision shows how that casual approach can unravel fast, turning everyday HR shortcuts into major financial exposure.
In DeCarlo v. 0894546 B.C. Ltd. (Black + Blue), a forced resignation, sloppy contract drafting and misleading communications combined to produce an extraordinary damages award.
For employers, the ruling is a pointed reminder that hospitality workplaces are not legally informal spaces, even if they feel that way operationally.
Erin Brandt, Vancouver employment lawyer with PortaLaw, points to structural realities in hospitality that make legal missteps more likely. High turnover, frequent onboarding and frontline managers making HR decisions without legal training are common across the sector.
“In hospitality, that onboarding and training happens with a high frequency,” she says.
“Ensuring that there's a consistent process, like a clearly outlined process for the managers to follow on site, is critical.”
The importance of well‑drafted clauses
A central feature of the ruling, Brandt explains, was the employer’s failure to clearly limit notice entitlements in its offer letter, resulting in the complainant, career server Craig DeCarlo who worked for the steakhouse for four-and-a-half years, receiving a 14-month reasonable notice award.
Because the termination clause was ambiguous, the court applied common‑law reasonable notice rather than statutory minimums, leapfrogging the roughly one-week-per-year of notice DeCarlo might have gotten, to get to the larger award.
“If this employee had signed an employment offer that had a clear termination clause — that clearly displaced the common law and was enforceable — a lot of what happened after that in the decision wouldn't have been relevant,” Brandt says.
“It was the fact that the termination clause was bungled so badly that led to an analysis of the employee’s common law entitlements, which led to an evaluation of the job market conditions, which led to this huge award of 14 months of severance.”
Not just a typo
In Black + Blue’s offer letter, the clause stated termination pay would “include” entitlements under the Employment Standards Act, rather than the more typical “in accordance with” and used the word “proscribe” rather than “prescribe.”
David Brown, Kelowna‑based lawyer who represented DeCarlo, explains why language nuances that might seem like harmless typos on the surface can nullify a contract.
“It really does highlight why professionally reviewed employment contracts are so important, because here it was the wrong word,” he says.
“It created an ambiguity. It created an absurdity. And the court said, ‘Well, this is non‑binding, because this can't happen.'”
Brandt agrees the drafting errors were a large part of the court’s decision in favour of the complainant.
“There's a difference between ‘include’ versus ‘in accordance with' … the judge said that ‘include’ implies that's not the full story,” she says, adding that the use of “proscribe” was also fatal.
“It wasn't a typo that had no impact. It was a different word that was used that had an entirely different meaning, which changed the whole meaning of the clause.”
Bad faith and the large punitive award
Beyond the contract language, the most consequential findings were about employer conduct. The court concluded that Black + Blue misled DeCarlo for more than a year, delaying his job search during a pandemic‑ravaged labour market.
“That was the backbone for the extraordinary damages and the punitive damages,” Brown says. “They were intentionally misleading him. They kept promising 'Just wait a little longer.'"
Brandt underscores the broader lesson for employers, that there is a duty to conduct themselves in good faith, especially with employment agreements.
“Misleading or dishonest behaviour by the employer may have consequences within the context of a wrongful dismissal claim,” she says. To prevent this from happening, she stresses the importance of front-loading training of managers. In the context of restaurants and hospitality, Brandt adds, there can be a lack of manager experience and, therefore, a higher risk of contract mistakes.
“People become managers for different reasons,” she says. “That doesn't necessarily mean that they've been trained on HR.”
Contract and legal template reviews
Regular legal reviews matter, particularly for large restaurant groups using standardized templates, she says, "and, also, ensuring that the teams on the ground are actually using the templates that are provided by the HR team.”
The nature of restaurant staffing being fast-paced with high turnover, with younger or otherwise lower-income employees who may not fully be aware of their rights, increases the risk of employers becoming complacent around legal rules, Brandt adds.
However, it only takes one.
“Every so often there's one employee who comes around, who's been really wronged, who wants to pursue it,” she says. “That can be very expensive when it goes wrong for the employer.”
