Burger King franchisor overstepped bounds when it fired long-term cook
By Howard Levitt
Theft or dishonesty is serious misconduct that generally results in termination without severance. After all, how can an employment relationship viably continue after such a fundamental breach of trust?
But Burger King overstepped the bounds of that general rule when it fired a cook in British Columbia for upgrading her free fish sandwich into a free combo, adding fries and an orange pop.
Forgetting her wallet one day, the cook asked her manager if she could take home free food after her shift. Her manager agreed. However, there appears to have been a misunderstanding as to whether her manager sanctioned a free fish sandwich rather than the free fish sandwich combo she left with.
In a misguided move, Burger King fired the cook, asserting just cause and providing no severance package for this 50¢ crime – or 50¢ misunderstanding, as it turned out.
Several important contextual factors should have stopped Burger King from making this critical error, which cost it US$46,000 in damages when the cook won her suit for wrongful dismissal and aggravated damages this month.
As the court noted, Burger King simply cannot adopt a “zero tolerance” for theft – or other misconduct – ignoring the long-established legal requirement that the context in which the theft took place must be analyzed.
The context in this case, included whether the employee intended to steal the fries and orange pop as opposed to misunderstanding her manager’s instructions. The credibility of both the manger and the cook was questioned by the Court. In the result, no intent to steal the fries and pop was found.
The cook’s 24 years of service with Burger King (five with the franchisee in question) and unblemished record were also considered. Indeed, one of the owners of the franchise location acknowledged the cook was an excellent employee. Based on these factors, the court commented that even if an intent to steal had been found, summary dismissal was not warranted.
Do Over: Given the cook’s service, unblemished record, value to the business and the triviality of the alleged misconduct, Burger King could easily have asked the question “Is this type of misconduct likely to recur if the cook is given a warning rather than dismissed?” The answer would invariably have been “No” and the ensuing lawsuit and damages avoided. Such an imputed answer almost invariably results in a court finding that cause does not exist.
Firings during maternity leave – a paternalistic footnote
A couple of weeks ago, I wrote about the protections afforded to women in relation to being terminated during maternity leave, and the few exceptions.
Many employers are rightly worried about being slapped with a Human Rights or Employment Standards complaint if they terminate an employee at any time adjacent to maternity leave, even if it is for an unrelated reason such as a true restructure in which many employees are downsized.
In this vein, an employer client of mine recently adopted an optimistic and even caring — but ultimately paternalistic and misguided — approach to such a termination, which backfired.
The employer had documented plans to downsize scores of employees the following year. The employer knew that a particular employee, who was commencing maternity leave, was on the termination list but elected not to tell the employee, hoping to find a comparable position for her by the time she returned. The employer, perhaps understandably, did not want to burden the employee with this knowledge just when she was starting her leave and so kept this information from her.
As it turned out, no comparable position was found and the employee was notified of her termination a week prior to her expected return. Not great news for a mother who had been without full pay for a year, had just enrolled her child in costly daycare and no doubt had a financial plan that included returning to work in a week.