Employer did not have authority to order worker to repay money or just cause to fire her
A company did not have the authority to order a worker to pay back company money she lost in a phone scam or just cause to fire the worker after she threw a pen at a colleague, the Nova Scotia Labour Board has ruled.
The worker started work with a Mary Brown’s fried chicken restaurant operated by DC Ventures in Halifax in October 2018. She was initially hired to be a cashier, later becoming a supervisor and then the store manager.
When the worker was hired, she signed a cash agreement that indicated that she took responsibility for the $200 float in the cash register drawer for the duration of her shift. If her float didn’t balance at the end of her shift, she agreed to pay any shortages.
Mary Brown’s also had a team member handbook that included a Workplace Anti-violence, Harassment and Sexual Harassment Policy. The policy defined workplace violence as “the exercise, statement, or behaviour of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker.” It also defined workplace harassment as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or workplace sexual harassment.”
The handbook committed the employer to conducting a thorough investigation within 90 days of a complaint and identified potential discipline for violating the policy, which it stated “may involve counselling, a formal warning, or dismissal.”
Fell for phone scam
On Sept. 20, 2021, another employee answered the restaurant’s phone and handed it to her, saying it was from Mary Brown’s head office. The caller told her that a new security system was being delivered that day but the company credit card had been declined for part of the invoice equalling $2,500.
The caller asked the worker to go to the post office and sent part of the $2,500 through an international money gram and to deposit part of it in a bitcoin machine. According to the caller, the restaurant’s owner was on the other line and he had authorized her to make the transaction.
The worker followed the instructions and destroyed evidence of the deposits as per the caller’s instructions, as he said that the owner was ashamed that his credit card had been declined.
When the worker returned to the restaurant, she told the other employee what had happened and she thought that she had “messed up.”
Later that day, the owner came to the restaurant and the worker explained what had happened. She suggested that she would pay the money to Mary Brown’s, and they went to report the incident to police. The police told them that this kind of fraud happened every day and there was nothing that they could do.
Worker told to pay back money
According to the worker, the owner told her on the way back from the police station that she had to pay the $2,500 to Mary Brown’s or she would be fired. She asked if she could spread it out over multiple paycheques, but the owner said it had to be paid immediately.
The next day, the worker deposited the money into the Mary Brown’s bank account, although it created financial difficulty for her. She said she did it to protect her job.
In mid-October, the worker got into an argument with the other employee over the staff schedule for Sunday, which was a significant day for food preparation. According to the colleague, the worker raised her voice and threw her pen and paper, with the pen striking him. According to the worker, she threw the items onto a table beside the colleague. She claimed another employee witnessed the incident and there was video surveillance footage of it.
The colleague reported the incident to the owner, who told him to take the rest of the day off. The owner spoke with the colleague, the worker, and the witness but he didn’t review the video surveillance footage.
On Oct. 22, 2021, the owner determined that the worker had violated the harassment and workplace violence policy and verbally informed her that her employment was terminated for threatening and harassing behaviour. There was no termination letter.
Labour standards complaint
The worker filed a labour standards complaint, indicating that her claim was for termination of employment with less than 10 years of service. She didn’t check the box next to “deductions from pay” but wrote a summary describing her argument with the colleague, her termination, and the money scam incident.
A delegate of the Nova Scotia Director of Labour Standards investigated and issued a preliminary decision addressing the termination issue on Oct. 18, 2022. The worker inquired as to why the money scam repayment was not address, and a new decision was issued on Dec. 6, finding that the worker was entitled to pay in lieu of notice of $1,600 and a repayment of the $2,500 she had paid to Mary Brown’s.
Mary Brown’s appealed, claiming that it had just cause to terminate the worker and she had paid the money voluntarily under the cash agreement that was part of her employment contract. It also argued that the money scam issue should not have been addressed she didn’t raise it as an independent claim until after the preliminary decision was issued a year later.
The board noted that the code allowed the Director to receive complaints “in any form,” so although the worker didn’t tick the box for pay deductions in her complaint form, she described it later on the form. This was sufficient to include the money scam repayment in her complaint, the board said.
The board also noted that the code’s intention is to protect the right of employees to be paid for their work and it differentiated wages from “any cause the employer may have against the employee.” The only exceptions in the code for deducting wages for losses caused by employees’ deliberate or negligent wrongdoing are “unless allowed by statute, court order or written authorization.”
Cash agreement doesn’t apply
Mary Brown’s argued that the cash agreement constituted written authorization by the worker, but the board found that the agreement expressly applied only to the $200 float and no other circumstances.
“There was no written agreement between the parties that permitted Mary Brown’s to recover its loss from [the worker],” said the board.
The board also found that the worker did not volunteer to pay back the $2,500, as she felt that she had no choice – particularly since the owner told her that she would be fired if she didn’t.
As for the worker’s dismissal, the board found that Mary Brown’s did not have just cause. The code only allowed for no pay in lieu of notice in the case of “wilful misconduct or disobedience or neglect of duty.” The employer also had a responsibility to engage in progressive discipline unless the misconduct was extremely serious, the board said.
The board pointed to the fact that the policy allowed for a range of disciplinary consequences and defined workplace violence as causing or potentially causing injury. Throwing a pen and paper in frustration during a scheduling disagreement had a low risk of injury occurring, and any injury would be minor, said the board, adding that it was a one-off incident that didn’t meet the harassment definition of “a course of vexatious comment or conduct.”
The board upheld the Director’s decision ordering Mary Brown’s to pay the worker $1,600 in lieu of notice and her $2,500 back. See DC Ventures Inc. v. O’Connell, 2023 NSLB 76.
