A B.C. cook must be compensated for wrongful dismissal despite his employer’s claim that he was fired within a three-month probationary period.
The province’s Civil Resolution Tribunal published its decision on the matter Thursday, finding in favour of the cook but awarding less than the $5,000 sought.
Sean Massullo worked for Little Jumbo Restaurant Corp. for two months in 2024 before he was let go, according to the decision. He claimed he was let go without notice and was therefore entitled to the equivalent of five months’ pay.
“Employers have a duty to give employees notice before firing them,” tribunal member Micah Carmody’s decision explained, adding that if notice is not provided the terminated employee is entitled to damages equivalent to what they would have earned in a “reasonable” notice period.
There are, however, legal exceptions for providing notice or compensation in lieu. One is when a worker is terminated within a probationary period and the other is if an employee is terminated with cause, according to the decision.
Little Jumbo Restaurant Corp. argued that both of these factors were at play in this case.
First, the eatery told the tribunal there was an agreed upon probationary term of three months and that Massullo was fired before it ended.
When a worker is on probation, the law allows for them to be fired without notice “if the employer in good faith determines that they are not suitable for the job by the end of the probationary period,” Carmody’s decision said.
The tribunal rejected this argument because there was no contract in evidence.
“Probation must be clearly agreed to in the employment contract. The law does not imply a probationary period,” the decision said.
Next, the tribunal considered the issue of just cause for Massullo’s dismissal. The burden of proving cause, the decision said, falls on the employer.
In support of its argument Little Jumbo Restaurant Corp. claimed that Massullo had “an explosive temper, and an inability to accept feedback.”
These claims were not backed up with any evidence and were therefore rejected as “bare assertions,” according to the decision.
There was, however, one workplace incident that the tribunal found did support the employer’s claim that Massullo exercised “poor judgment,” the decision said.
The cook did not dispute the employer’s claim that he brought a dog to work and kept the dog in the area where food was being prepared.
The tribunal had to decide if this constituted just cause for dismissal.
When an employee does something wrong, firing them is “the most extreme disciplinary action and should be a last resort,” Carmody explained, adding that in order for a firing to be justified an employee’s behaviour or misconduct has to rise to the level of being “incompatible with continued employment.”
Given that Massullo removed the dog when asked and was not “insubordinate” the incident did not justify his dismissal, the decision said, with Carmody saying a warning or reprimand would have been a more appropriate sanction.
After deciding Massullo was entitled to damages for wrongful dismissal, the tribunal determined that a “reasonable notice period” would be three weeks in the circumstances. He was awarded $1,800 in damages as well as $93.40 in pre-judgment interest.
