Drunken, heated argument about sugar daddies gets server fired — but leads to sweet payout
Lawyer says employers need to meet a very high bar to prove just cause for firing
Was it fair for an upscale seafood restaurant to fire an off-duty employee after a drunken, heated argument about sugar daddies?
B.C.'s Civil Resolution Tribunal didn't think so.
On Tuesday, the tribunal found Jocelyn Toledo, a former part-time server at Vancouver's Coast Restaurant, was sacked without just cause.
It awarded her $2,348.81.
Two lawyers say the situation speaks to a growing issue in employment law: employers and employees clashing over workers' off-duty behaviour.
The decision notes Toledo and a friend were drinking at Coast in May 2017. Toledo was off-duty at the time.
The pair were joined by a third person, a regular customer and served by two bartenders, identified in the decision only as DT and OG.
The restaurant told the tribunal it was justified in dismissing Toledo because she was "drunk around a patron, and telling stories to apply pressure for him to pay her bill."
At some point a "heated argument" broke out between Toledo and DT. DT admitted, the tribunal wrote, that he called Toledo out over her conversation about sugar daddies.
"DT admits he told [Toledo] what she was discussing was "complete bullshit," and that he used those words," the decision notes, adding DT admitted he was confrontational and provoked Toledo.
Toledo became upset and began to cry, the decision notes. She asked for her bill.
What happened next, according to the decision, is unclear.
Toledo said she believed she paid the bill in cash but conceded she may have forgotten. Her friend said she took out her credit card to pay, but the regular customer who joined them said he would pay.
DT, however, told Coast's general manager in an email that Toledo refused to pay, and it was he who paid the bill to get her to leave.
"DT said he did not like to see [Toledo] applying pressure to 'regulars' to pay a bill," the decision read.
The next day, Toledo met with the general manager who told her she committed theft by not paying. She was then fired for not paying her bill and "acting in a way that could result in a loss of business."
The tribunal shot those reasons down: the nonpayment, it said, was not theft but the result of confusion and inebriation caused by the restaurant's own employee.
It called Toledo's actions "misbehaviour," but said she was off duty and it was only witnessed by her friend, two of her colleagues and a single other patron.
It said her interactions with the patron were limited and for the employer to rely on DT's evidence, given that it was he who served the alcohol and had the argument with Toledo, was "problematic."
The decision found her dismissal to be without just cause.
Richard Johnson, a lawyer with Kent Employment Law, said he's not surprised the tribunal ruled the way it did, but the case speaks to a growing phenomenon of workers' personal lives raising the ire of their bosses.
Employers sensitive to off-duty behaviour
Johnson says employers are highly sensitive to off-duty conduct from their employees when they feel it reflects negatively upon the business.
Social media is often involved, especially when employees vent about their workplace. However, employers need to meet a very high bar to prove just cause for firing.
"Unless you're identifying that you're with a specific company and you're talking about a specific individual and the outside world knows what you're saying, who you're talking about and that's going to have an impact on the business fundamentally, there's probably not cause," he said.
"Everybody's allowed to go and talk about their day."
The tribunal ruling in Toledo's favour, Johnson continued, is not particularly surprising because a Coast employee served her the alcohol.
"If the employer has any hand in the kind of conduct ... the courts aren't likely to uphold just cause," he explained. "They're likely to find that some severance is owed.
"It's a really high threshold to establish just cause for dismissal and the employer bears the legal obligation to prove it."
Coast says high standard required of employees
Tom Beasley, an employment lawyer with Bernard LLP who counts Coast as a client, agrees disagreements between workers and their bosses is becoming more of an issue in employment law.
However, he emphasized the tribunal found there was misconduct: just not enough to meet the bar of just cause for firing.
He said that since Toledo was an employee of the restaurant she was in at the time of the incident, it was fair for Coast to hold her behaviour to a higher standard than another member of the public.
He said Coast has not decided whether to appeal the decision. He was not involved in the original Civil Resolution Tribunal process.
Toledo is currently deciding whether to be interviewed by CBC News.