Grasping at Straws: Claiming Discrimination in the Face of Clear Misconduct
October 16, 2024
Article by:
Teodora Bardas
Previously printed in the LexisNexis Labour Notes Newsletter.
In Bartender v. Finale Entertainment Inc., 2024 BCHRT 155, the complainant, a former bartender with the respondent nightclub, filed a human rights complaint after his employment was terminated without cause.
The complainant, who identified as Caucasian or white, alleged that his employment was terminated in order to hire a Chinese employee. To support his allegation of discrimination, the complainant relied on the fact that, on the same day the respondent terminated his employment, a Chinese worker started working in his place.
The respondent denied that it terminated the complainant’s employment on the basis of his race or colour or any other protected ground. The respondent maintained that it dismissed the complainant from employment following an incident in which he put a cash payment for drinks into a tip jar. While the respondent did not deny hiring an Asian employee, who was in fact Taiwanese and not Chinese, it denied replacing the complainant with the new employee.
There were conflicting versions of the incident leading to the termination of the complainant’s employment. The complainant maintained that when he informed two customers that an automatic gratuity would apply if they paid using a card at the bar, they became upset. The complainant testified that he used a “promo code” to discount the drinks in order to maintain goodwill. He testified that the customers gave him cash later in the evening which he placed into the tip jar. The complainant testified that he left his shift early that night due to an injury and that he did not take his share of the tips.
The respondent’s witness, Yuntongfei (Frank) Huo, testified that on the night in question, the owner was reviewing the video cameras to see how busy the club was and to determine whether he should close it early. When reviewing the video cameras, he happened to see the complainant taking cash from a customer and putting it in his tip jar. The owner sent a text message to Mr. Huo asking him to speak to the two customers who were in the video. Mr. Huo testified that when he did that, the customers told him that they gave the complainant $40 to pay for their drinks. They confirmed the money was for the drinks and not a tip for the complainant. Mr. Huo also testified that the transaction records from that night showed a drink order being cancelled around the same time as this interaction took place.
A few weeks later, the complainant’s employment was terminated. The complainant testified that during the termination meeting, there were three people in attendance: the complainant, the assistant general manager and a new employee. He suggested that the respondent’s motive in terminating his employment was to replace him, a Caucasian or white employee, with a Chinese employee. The respondent denied that the new employee was hired to replace the complainant. It maintained that the new employee was hired in a management position and not a bartender position.
The complainant also suggested that Chinese employees were treated preferentially to Caucasian or white employees by the respondent. He referred to an incident where a Chinese employee was accused of theft in similar circumstances but was only verbally warned and written up for the misconduct. The respondent distinguished the circumstances, noting that the employee in that case had placed the cash into the cash register as opposed to the tip jar.
The complainant also provided an example where a Chinese employee was hired at a higher pay rate than other servers. However, he did not lead evidence about how servers and bartenders are paid or why that single example would be representative of a larger pattern of behaviour on the part of the respondent.
In its decision, the Tribunal concluded that the complainant’s argument was based on speculation. It was not satisfied on the evidence that the respondent created the misconduct issue as a pretext to terminate the complainant’s employment.
Takeaways
Employees may accuse their employers of discrimination when they are disciplined for misconduct. It is important for employers to maintain clear policies regarding discipline and ensure consistent disciplinary responses to employee misconduct in order to avoid claims of discrimination.
While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.
October 16, 2024
Previously printed in the LexisNexis Labour Notes Newsletter.
In Bartender v. Finale Entertainment Inc., 2024 BCHRT 155, the complainant, a former bartender with the respondent nightclub, filed a human rights complaint after his employment was terminated without cause.
The complainant, who identified as Caucasian or white, alleged that his employment was terminated in order to hire a Chinese employee. To support his allegation of discrimination, the complainant relied on the fact that, on the same day the respondent terminated his employment, a Chinese worker started working in his place.
The respondent denied that it terminated the complainant’s employment on the basis of his race or colour or any other protected ground. The respondent maintained that it dismissed the complainant from employment following an incident in which he put a cash payment for drinks into a tip jar. While the respondent did not deny hiring an Asian employee, who was in fact Taiwanese and not Chinese, it denied replacing the complainant with the new employee.
There were conflicting versions of the incident leading to the termination of the complainant’s employment. The complainant maintained that when he informed two customers that an automatic gratuity would apply if they paid using a card at the bar, they became upset. The complainant testified that he used a “promo code” to discount the drinks in order to maintain goodwill. He testified that the customers gave him cash later in the evening which he placed into the tip jar. The complainant testified that he left his shift early that night due to an injury and that he did not take his share of the tips.
The respondent’s witness, Yuntongfei (Frank) Huo, testified that on the night in question, the owner was reviewing the video cameras to see how busy the club was and to determine whether he should close it early. When reviewing the video cameras, he happened to see the complainant taking cash from a customer and putting it in his tip jar. The owner sent a text message to Mr. Huo asking him to speak to the two customers who were in the video. Mr. Huo testified that when he did that, the customers told him that they gave the complainant $40 to pay for their drinks. They confirmed the money was for the drinks and not a tip for the complainant. Mr. Huo also testified that the transaction records from that night showed a drink order being cancelled around the same time as this interaction took place.
A few weeks later, the complainant’s employment was terminated. The complainant testified that during the termination meeting, there were three people in attendance: the complainant, the assistant general manager and a new employee. He suggested that the respondent’s motive in terminating his employment was to replace him, a Caucasian or white employee, with a Chinese employee. The respondent denied that the new employee was hired to replace the complainant. It maintained that the new employee was hired in a management position and not a bartender position.
The complainant also suggested that Chinese employees were treated preferentially to Caucasian or white employees by the respondent. He referred to an incident where a Chinese employee was accused of theft in similar circumstances but was only verbally warned and written up for the misconduct. The respondent distinguished the circumstances, noting that the employee in that case had placed the cash into the cash register as opposed to the tip jar.
The complainant also provided an example where a Chinese employee was hired at a higher pay rate than other servers. However, he did not lead evidence about how servers and bartenders are paid or why that single example would be representative of a larger pattern of behaviour on the part of the respondent.
In its decision, the Tribunal concluded that the complainant’s argument was based on speculation. It was not satisfied on the evidence that the respondent created the misconduct issue as a pretext to terminate the complainant’s employment.
Takeaways
Employees may accuse their employers of discrimination when they are disciplined for misconduct. It is important for employers to maintain clear policies regarding discipline and ensure consistent disciplinary responses to employee misconduct in order to avoid claims of discrimination.
While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.