A B.C. restaurant that suspended an employee for a week without pay for alleged “gossiping” and then forced them to sign a disciplinary notice has been ordered to pay more than $3,000 in damages after the Civil Resolution Tribunal found the worker was constructively dismissed — including $2,000 in punitive damages.
The case involved R.S.P., who worked in the kitchen at Joey Tomato’s (Canada) Inc. for about a year before the employment relationship ended in August 2023.
According to the tribunal’s decision, R.S.P.’s employment ended after they were called into an office by the sous chef and “front of house partner” where they were told “they were not allowed to leave until they signed a write-up.”
The write-up indicated they were being disciplined for being “discourteous to leaders/partners” with the manager noting they had “overheard & have physical proof of gossiping which goes against company code of conduct.”
As a result, R.S.P.’s shifts for that day and the following week were “covered” – meaning they would not work or be paid for those shifts. The employee signed the write-up “to be allowed out of the room,” but then quit immediately.
Constructive dismissal analysis
The tribunal found that Joey’s suspension of R.S.P. without pay was a unilateral change to the employment contract that breached a fundamental term – “namely, the right to work and receive wages for that work.”
In determining whether the suspension constituted constructive dismissal, the tribunal applied the two-part test from the Supreme Court of Canada’s decision in Potter v. New Brunswick Legal Aid Services Commission:
- Whether the employer’s unilateral change breached an express or implied contractual term
- If so, whether the breach, objectively viewed, was a substantial change to an essential contractual term
On the first question, the tribunal found that R.S.P.’s employment contract and the company policy manual provided no express authority to suspend them without pay for disciplinary reasons. The only mention of suspension in company policy was for failure to follow food safety protocols, which was not alleged in this case.
The tribunal also found there was no implied power to suspend without pay, noting that courts have not generally found such a right to be implied into employment contracts. The adjudicator noted that the same disciplinary purposes “could be accomplished through other means” such as “a written reprimand or courtesy training.”
On the second question, the tribunal concluded that a reasonable person in R.S.P.’s position would have found that an essential term of their contract had been substantially changed. The tribunal cited precedents establishing that suspending an employee without pay would have “an impact on the employee that was more than minimal.”
Termination clause limitations
Although the employee sought common law reasonable notice, the tribunal found the termination clause in their contract was enforceable. The clause stated that if Joey terminated their employment without cause, it would provide “reasonable notice, or pay in lieu of notice, in accordance with the applicable Employment Standards legislation.”
Citing the B.C. Court of Appeal’s recent decision in Egan v. Harbour Air Seaplanes LLP, the tribunal found that the termination clause, when read as a whole, was “sufficiently clear to rebut the presumption of common law reasonable notice.”
Based on one year of service, the tribunal awarded two weeks’ wages under the Employment Standards Act, calculated at 30 hours per week at $16.75 per hour, plus 4% vacation pay, totalling $1,045.20.
Punitive damages awarded
The tribunal rejected R.S.P.’s claim for aggravated damages due to insufficient evidence of mental distress. However, it awarded $2,000 in punitive damages after finding Joey’s conduct was “reprehensible, oppressive and high-handed.”
“I found above that Joey’s managers physically confined R.S.P. to a room until they signed the write-up imposing the suspension. It is understandable that R.S.P. felt intimidated and bullied,” the tribunal noted.
The decision also pointed out that “there were other ways Joey could have documented the discussion and receipt of the write-up without R.S.P.’s signature” and that R.S.P. “was not given an adequate opportunity to respond to the allegations behind the suspension.”
The tribunal found the employer’s conduct “was a marked departure from ordinary standards of decent behaviour” and that the $1,045.20 in contractual damages was “too low to meet the objectives of punishment, denunciation and deterrence.”
In determining the amount of punitive damages, the tribunal considered that Joey is “a large restaurant chain, and R.S.P. was vulnerable as a young and new employee. The power imbalance was significant.”
With pre-judgment interest of $89.64, the total award came to $3,134.84.
See Putter v. Joey Tomato’s (Canada) Inc., 2025 BCCRT 545 (CanLII).
