The Employment Standards Tribunal has dismissed a Squamish pub’s appeal of a previous ruling that found the pub liable for about $10,000 in total to seven former employees.
The Shady Tree Neighbourhood Pub’s owner, Eivind Tornes, filed an appeal on Jul. 13, 2022, that argued the first ruling failed to consider relevant evidence at the time and that new evidence had become available to be considered by the tribunal.
Background
On Mar. 18, 2020, Tornes closed the Shady Tree and temporarily laid off its employees due to the provincial government’s declaration of a provincial state of emergency due to COVID-19.
The temporary layoff period spanned almost 24 weeks. The pub remained closed on Aug. 31, 2020, so the layoffs then became permanent, and the employees were terminated.
When the employees were let go, they were not paid wages as compensation for length of service, as required.
Tornes told the employees that he did not owe them because the pandemic was an unforeseeable event.
Seven employees filed complaints to Employment Standards.
On June 23, 2022, adjudicator Dawn Rowan ruled that Tornes had to pay $9,701.51 in wages and interest and to pay an administrative penalty of $500 for its violation.
Tornes then appealed.
The appeal decision
However, on Dec. 19, 2022, the Employment Standards Tribunal found the appeal claims insufficient to overturn the initial determination.
“I find that the adjudicative delegate and investigative delegate did not violate natural justice principles, and I have decided that the ‘new evidence’ put forward by Mr. Tornes does not meet the criteria for acceptance by the tribunal in this appeal,” wrote Employment Standards Tribunal member, Jonathan Chapnick, in his decision.
“The employer’s appeal of the determination is therefore dismissed.”
Chapnick wrote that Tornes’s appeal argued that the general manager of the pub should not have been a witness to the investigation because he was in favour of the complainants and presented incorrect information.
Before this appeal decision, the Shady Tree Pub was found liable for $64,000 in wrongful dismissal damages to the now-former general manager, Marco Fanzone.
In the appeal decision, Chapnick wrote that the evidence provided by the general manager was “arguably relevant” to the issues raised by the complainants.
“I therefore see no misdirection or injustice,” wrote Chapnick. “This was not a breach of natural justice.”
Chapnick also dismissed several other of Tornes’s claims that argued a natural justice violation.
Additionally, as part of the appeal, Tornes submitted a notice issued to staff in July 2022 that notes the pub’s reopening during that month as well as addresses the closure of the pub in March 2020 and the path to reopening.
However, Chapnick concluded that this evidence would not have led the original delegate to reach a different conclusion about the issue at hand.
“The central question before the adjudicative delegate was not whether Mr. Tornes wanted to reopen the pub … it was whether it was impossible for the employer to do so at the end of August 2020,” wrote Chapnick. “The evidence put forward by Mr. Tornes does not shed new light on this question.”
