The B.C. Civil Resolution Tribunal has ordered a Victoria restaurant to pay a former cook $1,893.40 in wrongful dismissal damages, finding the employer failed to prove it had just cause to terminate the worker and improperly relied on a probationary period that was never contractually established.
The decision concerns the firing of S.M., who was employed for two months by Little Jumbo Restaurant Corp. before being dismissed without notice. The restaurant claimed the dismissal occurred during a probationary period and that the employee was unsuitable for the role due to performance concerns and an incident involving a dog being brought into the kitchen.
However, the tribunal found no written contract or other evidence supporting the existence of a probationary period and determined the employer had not met the legal threshold to establish just cause.
“Dismissal is the most extreme disciplinary action and should be a last resort,” the tribunal wrote. “With that principle in mind, I find a lesser disciplinary sanction, such as some combination of a warning, reprimand, or policy review, would have sufficed here.”
Probation period not implied without agreement
The employer argued that S.M. was terminated within the first three months of employment, which it described as a probationary period. It cited section 63 of the Employment Standards Act, which exempts employers from providing compensation for length of service during that time.
But the tribunal clarified that S.M. was not seeking compensation under the ESA, but rather damages for common law reasonable notice.
At common law, a probationary period must be expressly agreed to in an employment contract. The tribunal found no such agreement existed in this case.
“There is no written contract here, and Little Jumbo provided no evidence of any oral contractual terms,” the decision states. “So, I find there was no probationary period.”
Alleged misconduct unproven
Little Jumbo also argued it had just cause to terminate the cook, citing repeated incidents of poor judgment, an explosive temper, and an inability to accept feedback. The employer’s key example was that S.M. brought a five-month-old dog into the restaurant, tying it in a box near a food preparation area.
S.M. acknowledged bringing the dog, which belonged to a friend, but said it was removed promptly after being instructed to do so by the manager. The tribunal found no evidence of insubordination and accepted that the dog incident showed poor judgment, but not misconduct warranting dismissal.
The tribunal also noted that the employer provided no evidence—such as witness statements or written warnings—to support its claims of poor performance or behavioural issues.
“The law expects employers, before firing an employee for cumulative misconduct or poor performance, to set and communicate reasonable standards, give a clear warning… and give the opportunity to correct the conduct,” the tribunal wrote. “Little Jumbo offers no evidence, [so] I find it did not do these things.”
Damages awarded for three weeks’ notice
S.M. initially claimed $5,000 in damages, representing five months’ notice. However, he later submitted that two months would have been fair, based on an online severance calculator.
The tribunal found that tool unreliable and instead considered the relevant common law factors: S.M.’s age, qualifications, tenure, and employment history. S.M., a red seal certified cook in his mid-40s, had held 48 jobs over eight years and said he faced challenges finding work due to poor health.
Balancing these considerations, the tribunal concluded that three weeks’ notice was appropriate and awarded $1,800 in damages, plus $93.40 in pre-judgment interest under the Court Order Interest Act.
No punitive damages awarded
S.M. also sought punitive damages on the basis that Little Jumbo refused to settle the dispute. The tribunal rejected this request, stating that declining a settlement offer does not constitute “reprehensible conduct” and that the dismissal itself did not rise to that level.
No fees or further expenses awarded
Neither party was ordered to pay tribunal fees or other expenses. Little Jumbo, which has since closed, was given 21 days to pay the total amount ordered. The tribunal’s order can be filed in the Provincial Court of British Columbia and enforced as a court judgment.
For more information, see Massullo v. Little Jumbo Restaurant Corp., 2025 BCCRT 387 (CanLII).
