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Hamburger Mary’s employees win severance lawsuit

Phil Moon’s company broke promises, court says

After more than a year of renovations, Hamburger Mary’s reopened in May 2016. This photo taken in March shows the restaurant and the adjacent plaza still under construction. Credit: Niko Bell/Daily Xtra

Two former Hamburger Mary’s employees, who say they were denied severance when the eatery closed down, have won a lawsuit against their employer.

A BC Supreme Court justice ruled that Numbers Cabaret Ltd, owned by prolific West End developer Phil Moon, broke its promise to rehire staff.

Robert Logan and Kimberly Bocking worked at the restaurant, for different owners, for about 18 years as a cook and a waitress. When Moon’s Numbers Cabaret bought Hamburger Mary’s from Hy Enterprises in October 2014, he closed down for what he estimated would be eight to 10 weeks of renovations.

At the time, Moon told Daily Xtra he didn’t have to pay his newly laid off employees any severance because they had only worked for his company for four months, and because the layoff was only temporary.

Logan and Bocking testified that Moon told them staff would be laid off and rehired after the renovations.

Asked for comment on the court’s decision, Moon says it wouldn’t be appropriate for him to discuss the case until his lawyers have addressed the ramifications of the decision.

Numbers Cabaret records of employment for Logan and Bocking dated March 17, 2015, say their expected date of recall was June 16, 2015. However, the renovations took longer than expected and the restaurant remained closed until May 2016.

Supreme Court of British Columbia Justice Paul Walker ruled Logan is entitled to an award covering March 15 to Oct 7, 2015 calculated on his annual salary of $36,000 per year. 

Bocking’s award is to be calculated based on her hourly wage of $10.50 per hour plus tips of $100 per month. Bocking told the court her tips totalled $1,200 per month.

“Given their lengthy association with the restaurant, I am satisfied that they acted reasonably in not seeking other employment between March 15 and June 16, 2015,” Walker ruled.

While the pair’s employment was never formally terminated, by September 2015 they realized they would not be returning to their jobs and filed a lawsuit against Numbers Cabaret. Neither has worked since leaving Hamburger Mary’s, nor have they applied for any jobs, Walker found.

Walker ruled the company breached its promise to reinstate their jobs, and that their employment was effectively terminated on March 15, 2015. He said Numbers Cabaret is liable for severance pay from that date.

But, he added, Logan and Bocking failed to discharge their duty to look for other work once they realized that they would not be returning to Hamburger Mary’s.

“They have not acted reasonably,” Walker ruled.

“They cannot now say to Cabaret that it must pay the full amount of the notice period,” he added.

Numbers Cabaret agreed on the severance pay issue but disputed Bocking and Logan’s claim for tips. The company says the two didn’t prove their claim for tips.

Numbers also said the length of the pair’s claim period couldn’t be justified given their failure to seek alternate employment until recently.

Walker said assessing tips “is highly problematic and not supported by sufficient evidence,” and that he therefore could not make an award.

Walker limited Bocking’s tips to calculations based on $1,200 a year as a result of her filings to Revenue Canada. Logan failed to report any tips to Revenue Canada, Walker said.

Logan and Bocking could not be reached for comment.