Restaurant employee complained about verbal harassment and physical altercation with owner; owner ordered employee off the shift schedule
An Ontario employer must pay an employee damages for loss of employment and lost wages after it failed to schedule the employee for any more shifts when she complained about physical and verbal abuse by the owner.
Hayley Thompson was a night manager and key holder for the Slainte Irish Gastropub, a pub and restaurant in Hamilton, Ont. Her position often required her to work late evenings until close, usually starting at 11 p.m.
For employees on the late shift, it was common for them to arrive a little early and order something to eat before they started work. Thompson came to the restaurant early on Nov. 8, 2014, for this purpose, as she was scheduled to begin work at 11 p.m.
After Thompson arrived, a co-worker told her that the owner, Gary Ceppetelli, didn’t want her to order a meal and she must report to him. Thompson thought Ceppetelli might be under the mistaken impression that she was starting her shift late because she ordered dinner, so she went to his office. When she entered, Ceppetelli began yelling at her and calling her rude names, including saying she was “f---ing crazy.” He also told her to “get the f--- out.”
Thompson was in shock at Ceppetelli’s behaviour and decided to leave the restaurant. She cancelled her dinner order and, on her way out, Ceppetelli approached her again and said “Get the f--- out you f---ing crazy b----.” He then grabbed Thompson’s arm and pulled her towards the door. Upset, Thompson exited the restaurant.
A short time later, Thompson called the manager as it still wasn’t time for the start of her shift. She described the incident to the manager, including the way Ceppetelli had spoken to her and that he had grabbed and pushed her. The manager assured Thompson that Ceppetelli wouldn’t be at the restaurant when her shift started and convinced her to come in. Thompson agreed and worked her shift as normal beginning at 11 p.m.
Not on work schedule
Two days later, on Nov. 10, Thompson went to Slainte to check her work schedule and a few other things. She found she wasn’t on the schedule for any upcoming shifts and was told to speak to the manager. She tracked down the manager, who told her that Ceppetelli had requested she not be on the upcoming schedule.
Thompson interpreted the absence of shifts to mean she was under suspension, so she discussed the matter with the manager the next day, explaining that if she was suspended, she wanted a detailed suspension letter explaining why. When she didn’t receive any letter, she texted Ceppetelli and asked for a suspension letter. Ceppetelli responded with a text saying he would give her a letter “right after I get a letter explaining your obnoxious and bizarre and rude behaviour.”
After receiving Ceppetelli’s response, Thompson reported the Nov. 8 incident to the Ontario Ministry of Labour.
The following week, on Nov. 18, Thompson emailed Ceppetelli complaining that his actions on Nov. 8 constituted workplace violence and harassment. She requested a copy of Slainte’s policy and procedures on workplace violence and harassment, but Ceppetelli didn’t grant her request. He also denied harassing her, saying Thompson had been engaging in insubordinate behaviour on Nov. 8 and he had removed her from the schedule as a result.
In response to Thompson’s complaint, the Ministry of Labour launched an inspection of the restaurant under the Ontario Occupational Health and Safety Act on Nov. 21. Ceppetelli advised Thompson of the inspection and said she should meet with the restaurant’s health and safety committee. Thompson replied that she was willing to do so and asked again for a copy of Slainte’s workplace violence and harassment policy and procedures.
However, Ceppetelli didn’t respond to Thompson’s request and didn’t communicate with her again. Thompson repeatedly asked to be put on Slainte’s work schedule but she wasn’t scheduled to work again.
The Ministry of Labour issued eight orders against the restaurant and Thompson filed a complaint with the Ontario Labour Relations Board.
Grabbing and pushing was workplace violence
The board noted that the act defined workplace violence as physical force or an attempt to use physical force against a worker that causes or could cause injury to the worker, or a statement that the worker could interpret as a threat of physical force. This definition is intended to prevent such behaviour and is intentionally broad, said the board.
Though Thompson didn’t suffer any injuries, the board found Ceppetelli’s act of grabbing her arm and pushing was sufficient to meet the definition of workplace violence as it involved “the exercise of physical force by a person against a worker” that could potentially cause injury.
The board also found Thompson tried to exercise her rights under the act three times: when she complained to the manager the night the confrontation took place; when she complained to Ceppetelli and requested a copy of Slainte’s workplace harassment and violence policy; and her formal complaint to the Ministry of Labour.
The board then found that by not scheduling Thompson to work any shifts following her complaint and request for the policy, Slainte and its owner were acting in reprisal for her raising these issues.
Neither the restaurant nor Ceppetelli provided any explanation or justification for their failure to give Thompson any more shifts to work, and the act placed the onus on the employer to prove the conduct that the employee complained of didn’t occur or wasn’t related to the employee’s attempt to exercise her rights. Without any evidence to the contrary, the board found Slainte’s failure to schedule Thompson for further shifts directly because of her health and safety complaints.
The normal remedy that has been established for a reprisal in contravention of the act is reinstatement, but Thompson made it clear she didn’t want to return to work at the restaurant and the board agreed, given the manner in which her employment ended.
In place of reinstatement, the board found Thompson was entitled to damages for loss of employment in addition to lost wages.
Thompson found a new job with similar pay 10 weeks after the termination of her employment with Slainte, so it found she was entitled to 10 weeks’ pay as compensation for her loss of employment. She was entitled to the same amount of damages for lost wages, so in total the restaurant was ordered to pay Thompson $7,437.16 within 30 days of the decision.
For more information see:
• Thompson v. 580062 Ontario Inc., 2015 CarswellOnt 17923 (Ont. Lab. Rel. Bd.).
