File: SC-2019-006367
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Moura Lopes v. Quarterdeck Brewing Co. Ltd., 2020 BCCRT 360
BETWEEN:
LUIZ HENRIQUE MOURA LOPES
APPLICANT
AND:
QUARTERDECK BREWING CO. LTD.
RESPONDENT
REASONS FOR DECISION
Tribunal Member:
Lynn Scrivener
INTRODUCTION
1. This small claims dispute is about the termination of an employment relationship.
The applicant, Luiz Henrique Moura Lopes, says that the respondent, Quarterdeck
Brewing Co. Ltd., terminated his employment without cause and provided him with
inadequate severance.
2020 BCCRT 360 (CanLII)
Date Issued: March 31, 2020
2. The applicant says that he suffered financial losses and emotional upset as a result
of the termination and the way in which his termination was handled by the
in damages. The respondent’s position is that it terminated the applicant’s
employment for cause, and that it has paid him the severance to which he is
entitled.
3. The applicant is self-represented. The respondent is represented by an employee.
JURISDICTION AND PROCEDURE
4. These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The
tribunal has jurisdiction over small claims brought under section 118 of the Civil
Resolution Tribunal Act (CRTA). The tribunal’s mandate is to provide dispute
resolution services accessibly, quickly, economically, informally, and flexibly. In
resolving disputes, the tribunal must apply principles of law and fairness, and
recognize any relationships between parties to a dispute that will likely continue
after the dispute resolution process has ended.
5. The tribunal has discretion to decide the format of the hearing, including by writing,
telephone, videoconferencing, email, or a combination of these. I decided to hear
this dispute through written submissions, because I find that there are no significant
issues of credibility or other reasons that might require an oral hearing.
6. The applicant filed a complaint with the Employment Standards Branch (ESB). The
ESB has exclusive jurisdiction over entitlements under the Employment Standards
Act (ESA), and the tribunal therefore has no jurisdiction over those entitlements. In
a September 12, 2019 preliminary decision, a tribunal member decided that,
although the tribunal did not have jurisdiction to address any possible entitlements
under the ESA, the applicant’s claim for common law damages was within the
tribunal’s jurisdiction under section 118 of the CRTA. I agree with this decision.
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respondent. The applicant asks for an order that the respondent pay him $2,716.24
7. On January 9, 2020, a tribunal member made a preliminary decision in which she
declined to order the disclosure of all social media posts and comments the
disclosure of this information is not warranted in the circumstances.
8. After the parties provided their evidence and submissions, the applicant sought to
submit late evidence about the outcome of the complaint to the ESB. I asked the
parties to provide submissions about whether this evidence should be accepted.
The applicant said the new evidence is an “incremental update” to what he
described in his submissions, while the respondent said it is not related to this
dispute. I have decided not to accept the late evidence on the basis that it is
relevant only to the ESB complaint. This matter is separate from the issues in this
dispute, which flow from the applicant’s common law rights under the parties’
employment agreement. In other words, the ESB complaint’s outcome is not
relevant to this dispute and so I find there is no need to consider the late evidence.
9. The tribunal may accept as evidence information that it considers relevant,
necessary and appropriate, whether or not the information would be admissible in a
court of law. The tribunal may also ask questions of the parties and witnesses and
inform itself in any other way it considers appropriate.
10. Where permitted by section 118 of the CRTA, in resolving this dispute the tribunal
may order a party to do or stop doing something, pay money or make an order that
includes any terms or conditions the tribunal considers appropriate.
ISSUES
11. The issues in this dispute are:
a. whether the respondent had just cause to dismiss the applicant from his
employment, and
b. if the applicant was not dismissed with cause, what is the appropriate remedy.
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applicant made to current and former employees of the respondent. I agree that the
EVIDENCE AND ANALYSIS
12. The parties provided evidence and submissions in support of their positions. While I
provide context to my decision.
13. In a civil dispute like this one, an applicant bears the burden of proof on a balance
of probabilities. However, an employer bears the burden of establishing just cause
for dismissal and any alleged misconduct (see, for example, Hawkes v. Levelton
Holdings Ltd., 2012 BCSC 1219 at para. 30, aff’d 2013 BCCA 306). I will address
the parties’ respective burdens in my analysis.
14. The applicant worked at one of the respondent’s restaurants between 2016 and
2019. He started as a busser and worked his way up to a server position. On 2
occasions during the applicant’s employment, he signed a document titled “Black
and White Rules” (Rules), which contained various policies and behavioural
expectations. The Rules document indicated that employees “may” be subject to
disciplinary action “including a verbal warning, written warning, suspension or
discharge” for behaviours such as refusing to perform assigned work, distributing
confidential information about the restaurant, and interfering with the work efficiency
of other employees.
15. The applicant came to disagree with a “dine and dash” fund in place at the
restaurant, as well as some of the respondent’s policies surrounding credit cards. In
his view, these practices were “illegal” and “immoral”, and contributed to a negative
work environment. In May of 2019, the applicant made postings in a social media
chat group about his views, and encouraged other employees to take action against
the respondent.
16. Although it is not clear whether it was aware of the social media postings, the
respondent knew about the applicant’s position about the policies through
discussions with him. The respondent says, and the applicant did not dispute, that
its human resources manager instructed the applicant to discuss his disagreement
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2020 BCCRT 360 (CanLII)
have considered all of this information, I will refer to only what is necessary to
with or raise questions about company policies only with human resources
personnel or an executive.
with a group of employees during a pre-shift meeting. During this conversation, the
applicant raised an issue with another credit card policy, which he described as
“bullshit”. The supervisor felt that this was inappropriate, and notified the
respondent’s management team about the applicant’s comment.
18. In a June 6, 2019 letter (which was sent to the applicant via email), the respondent
terminated the applicant’s employment. The respondent took the position that the
applicant had disregarded management decisions and repeatedly questioned its
policies. The respondent noted that the applicant had failed to bring his concerns
about company policies to human resources or an executive as instructed. The
respondent stated that the applicant’s actions and attitude undermined the
employment relationship to the point that it could not effectively continue. The
respondent stated that it would pay wages in lieu of notice as calculated under the
ESA and on a without prejudice basis. Although not stated in the letter, this
amounted to two weeks of wages.
19. The applicant’s position is that he was an excellent and highly-valued employee,
and the respondent did not have just cause to dismiss him. The applicant states that
he never got any written warnings during the course of his employment. He
suggests that his termination was a form of retaliation due to his advocacy about the
restaurant’s policies and was timed deliberately to occur before the 3-year
anniversary of his employment and deprive him of additional severance under the
ESA.
20. The applicant says that his use of the word “bullshit” was not insubordinate but
rather “shop talk” that is not out of the ordinary in the workplace. His position is that
his conduct did not rise to the level that justified dismissal for cause. Further, the
applicant says that the respondent handled his termination in a high-handed and
reprehensible manner, which cast aspersions on his personal character and made
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2020 BCCRT 360 (CanLII)
17. On June 1, 2019, a supervisor was discussing a policy about automatic gratuities
him feel like a criminal. The applicant says that there was no agreement that the
issues of dismissal or reasonable notice would be governed by the ESA, therefore
pay in lieu of notice. He also claims $1,086.50 in damages for the “egregious”
manner in which he was terminated.
21. The respondent says it had just cause to terminate the applicant’s employment.
According to the respondent, the applicant had a prior disciplinary history for
behaviour which was contrary to the Rules. The respondent described an incident of
insubordinate behaviour when the applicant was rude to a supervisor who asked
him to perform a work task, and did not apologize when directed to do so. I note that
the applicant denies that this incident occurred as the respondent describes. I also
note that the respondent did not dispute the applicant’s report that he did not
receive a written warning for this or any other incident.
22. The respondent says the applicant repudiated his employment agreement by
making social media postings about the restaurant and by calling a restaurant policy
“bullshit”. Further, the respondent says that the applicant’s contempt of employees
and management had risen to the level that he irreparably damaged the
employment relationship. The respondent denies that it acted in retaliation for the
applicant’s views on its policies, and says that the applicant has not proven his
efforts to mitigate his losses.
23. I turn to the applicable law. An employer may dismiss an employee by giving him or
her reasonable notice or pay in lieu of notice of dismissal. However, if the employer
shows cause, it may dismiss the employee without notice or pay in lieu (see, for
example, Ansari v. B.C. Hydro, 1986 CanLII 1023 (BCSC)). An employer must
prove that the employee’s conduct was seriously incompatible with his or her duties,
and that the conduct went to the root of the employment relationship in order to
show just cause (Panton v. Everywoman’s Health Centre Society (1988), 2000
BCCA 621).
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he is entitled to common law notice. He seeks damages of $1,629.74, or 3 months’
24. In this case, the respondent says that the applicant breached the Rules. Breach of a
company policy or rule may be cause for dismissal. However, as discussed in
employer must establish the following facts about a policy or rule in order for a
breach to amount to just cause:
a. it has been distributed to employees;
b. it is known to the employee affected;
c. it is unambiguous;
d. it is consistently enforced by the company;
e. employees are warned that they will be dismissed should they breach the rule
or policy;
f. it is reasonable; and,
g. the breach is sufficiently serious to justify dismissal.
25. In Booton v. Synergy Plumbing and Heating Ltd., 2019 BCSC 276, the Court
considered at paragraph 66 a situation where a policy stated that an employee “may
be subject to immediate dismissal” for breaching the policy. The Court held that the
use of the word “may” did not amount to a warning that an employee would be
dismissed and concluded that the plaintiff’s dismissal was wrongful.
26. The circumstances of this case are analogous in that the Rules identify a range of
disciplinary options that “may” apply to an employee who breaks them. Following
the analysis in Booton, I find that the respondent cannot rely on any breach of the
Rules to establish just cause for the applicant’s dismissal. Given my conclusion, I do
not find it necessary to determine whether the applicant breached the Rules.
27. However, that is not the end of the matter. The parties’ employment relationship
was not governed simply by the Rules. I find that I may consider the respondent’s
claim of insubordination apart from the Rules.
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2020 BCCRT 360 (CanLII)
paragraph 8 of Roney v. Knowlton Realty Ltd., 1995 CanLII 3132 (BCSC), an
28. Insubordination may constitute cause for dismissal if the employer can establish
that an employee breached an essential condition of the contract of service. This
instruction: Adams v. Fairmont Hotels & Resorts Inc., 2009 BCSC 681 at paragraph
278.
29. As noted above, the respondent says that it had instructed the applicant to discuss
or question company policies only with human resources staff or an executive. The
applicant did not dispute this statement, and admits in his submissions that he
asked a supervisor a question about a policy during the June 1, 2019 meeting.
Although the applicant submits that the use of the word “bullshit” was commonplace
in the work environment, I find that he has not proven this point. In any event, this
does not explain the remainder of his comment.
30. It was open to the applicant to hold views about the respondent’s policies. However,
after he was instructed to address those views only with human resources
personnel or an executive, it was not open to the applicant to raise questions about
these policies with any other staff member, including his supervisor. I find that, by
raising an issue about a company policy with a colleague who was not a member of
the human resources staff or an executive, the applicant defied a clear and
unequivocal instruction from his employer.
31. I find that it was reasonable for the respondent to determine that this refusal to
follow an instruction impacted the trust relationship at the heart of their contract. I
am satisfied that this conduct amounted to insubordination. I also find that, in the
circumstances, it was reasonable for the respondent to fear that the applicant would
not abide by other instructions or policies that it felt were essential to its business
operations. Accordingly, I find that the respondent had cause to terminate the
applicant’s employment.
32. I acknowledge the applicant’s view that the respondent terminated his employment
in retaliation for his position on its policies. However, I find that this submission, as
well as the allegation of hostile behaviour by the respondent’s employees, is not
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may occur where the employee has willfully defied a clear and unequivocal
supported by the evidence. While I do not doubt that the applicant found his
termination to be unpleasant, I also find that the respondent’s method of terminating
egregious given the circumstances and his past behaviour. I would not have
awarded the applicant damages for this claim even if I had found that the
respondent did not have just cause to dismiss him.
33. Based on the evidence before me, I conclude that the applicant has not established
that he was dismissed without cause or reasonable notice. I find that the applicant is
not entitled to further compensation from the applicant, and dismiss his claims for
damages.
34. Under section 49 of the CRTA and tribunal rules, the tribunal will generally order an
unsuccessful party to reimburse a successful party for tribunal fees and reasonable
dispute-related expenses. As the applicant was not successful, I dismiss his claim
for reimbursement of tribunal fees.
ORDER
35. I dismiss the applicant’s claims and this dispute.
Lynn Scrivener, Tribunal Member
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the applicant’s employment (namely, sending him a letter by email) was not