A Mary Brown’s Fried Chicken franchise was not entitled to recoup $2,500 from a store manager who fell for a telephone scam that saw her drive to a Canada Post location to send an international money order and deposit money into a nearby bitcoin ATM.
The Nova Scotia Labour Relations Board also ruled the franchise owner did not have cause to terminate her for throwing a pen and paper at a colleague, citing its poor investigation and lack of reviewing video surveillance to find out what really happened.
Background
PO worked for a Mary Brown’s Fried Chicken franchise in Nova Scotia, first as a cashier, then supervisor before being promoted to store manager. She started in October 2018 and was fired in October 2021.
When she started, she signed a cash agreement that read:
“I, (PO) have $200.00 in the drawer that I am taking responsibility for, during the duration of my shift(s). I am also responsible for any monies coming into my float during my shift(s). My float must balance at the end of my shift(s) and all sales must be accounted for and any shortages I will repay.”
She also signed acknowledgement of an employee handbook that contained provisions on the company’s workplace anti-violence, harassment and sexual harassment policy.
Money scam
On Sept. 20, 2021, someone called the restaurant and claimed to be calling from Mary Brown’s head office. They said the franchise owner, CA, had asked them to call her and let her know a new security system was being delivered later that day by UPS.
They provided a tracking number and referred to renovations happening at the store. The caller told her the total cost of the invoice was $7,100 and they had already received $4,550, but the credit card was declined for the remaining balance of $2,500.
PO said the caller told her to go to the post office and send part of the $2,500 internationally using a money gram and to deposit the balance in a nearby bitcoin machine. The caller told her that CA was on the other line and had authorized her to pay this amount.
PO stayed on the phone with the caller while she went to the post office and a bitcoin ATM. The caller then told her to destroy evidence of the deposits because CA was ashamed that his credit card was declined. She followed those instructions.
When CA arrived at the store later that day, PO told him what had happened. They reported the incident to police, but the officer told them this type of fraud happens every day and there was nothing police could do.
On the car ride from the police station back to the store, PO said CA told her she had to pay the $2,500 back or she would be fired. She asked if she could spread it over multiple pays, but he told her it had to be paid in full immediately. CA disputed that conversation and said PO offered voluntarily to pay it back.
The next day, on Sept. 21, 2021, PO deposited $2,500 into Mary Brown’s bank account. She said it was a financial hardship for her, especially during the pandemic, and that she did it to protect her job.
Schedule conflict and termination
About a month later, conflict arose between PO and a co-worker over the staff schedule. The worker thought there should be more staff scheduled on a Sunday because it was an important food prep day.
PO disagreed, and said she was limited in her ability to schedule extra staff by resource requirements placed on her as manager by head office. The worker claimed PO raised her voice at him, and threw her pen at him. PO testified that the worker also raised his voice.
The worker called CA, the franchise owner, who told him to take the rest of the day off.
CA decided to fire PO, and didn’t review the video surveillance before making that decision. He didn’t rely on a specific clause in the workplace anti-violence policy to make his decision — he believed the policy as a whole gave him the authority.
His investigation consisted of conversations with two of her colleagues, including the victim. He didn’t review the video surveillance in the store as part of his investigation. He did not write a termination letter, but told her in person that her employment had been terminated for threatening and harassing behaviour.
The ruling: Money from the scam
The Nova Scotia Labour Relations Board said the forced repayment of the $2,500 from the scam was prohibited by the Labour Standards Code.
While the code does contain exceptions on repayments — ones allowed by statute, court order or written authorization — it noted that even business losses that arise due to the employee’s deliberate or negligent wrongdoing are protected.
Mary Brown’s argued the cash agreement covered such a situation, but the board disagreed. It applied strictly to the float of $200, and wasn’t broad enough to cover the unusual circumstances of the $2,500 scam. There was no written agreement between the parties that permitted Mary Brown’s to recover its loss from PO.
Mary Brown’s also argued that PO offered to voluntarily pay the money back, and it did not require her to do so. PO, on the other hand, thought she had to or she would lose her job,.
The board concluded that PO felt she had no choice but to pay the amount, which was significant for her. At an annual salary of $50,000, it was about three weeks’ pay for her, it said.
The ruling: Termination
The board said PO’s getting upset and throwing an object at a coworker was misconduct, and Mary Brown’s had a right to respond.
But that response must be proportionate. Termination in this case was excessive, it said.
“(PO’s) behaviour was unprofessional and carried a minor risk of a minor injury to (her colleague). Considering the range of possible violent actions that could take place in a workplace, this one did not warrant the most severe of possible punishments,” it said.
It also found it noteworthy that the investigation process in the policy did not unfold before a decision was made to fire PO. CA spoke to two co-workers, but did not interview PO for her perspective on what took place. Nor did he review the video surveillance for an unbiased view of the situation.
Therefore, it ruled there was no cause to terminate her without pay or notice.
Damages
The board awarded PO $1,600.04 in gross pay and $2,500 for protection of pay.
For more information, see DC Ventures Inc. v O’Connell, 2023 NSLB 76 (CanLII)
