(Montreal) A restaurant waitress who challenged the tip-sharing agreement imposed by her employer – who challenged it by filing a complaint with the CNESST and who had been dismissed – has just won her case before the Administrative Labor Tribunal.
The court has just rescinded her dismissal and ordered her employer, a franchise from Montreal's restaurant Le Festin du capitaine, to reinstate her in her job. In addition, the court orders her to pay her, as compensation, the equivalent of the salary and other benefits from which she was deprived by her dismissal.
The waitress had filed a complaint with the Commission for Standards, Equity, Health and Safety at Work (CNESST) because she felt that the tipping agreement was imposed by the employer. This convention stipulates a 70-30% sharing; 70% for employees who worked that day and 30% who are paid to kitchen employees.
However, the Act respecting labor standards stipulates that the tip paid by a client belongs to the employee and that if the employer receives it, he must give it entirely to the employee, unless there is a sharing agreement. tips in accordance with the law.
"This law also prohibits employers from imposing a sharing of tips or even intervening in any way whatsoever in the establishment of a tip-sharing agreement, which must result solely from the free and voluntary consent of employees who are entitled to tips, "wrote the administrative judge Mylène Adler in its decision.
The CNESST investigator concluded that the tip-sharing done by the employer did not respect the law. He had given the manager a sharing agreement form published by the CNESST reminding him that it is up to the employees to discuss it and that "the employer should not interfere," writes the administrative judge.
The employer argued that by signing their contract of employment, all employees freely consent to the sharing of tips according to the 70-30 principle and that the waitress could not question it after the fact.
But the evidence showed that the employment contract was imposed by the employer on the waitress after she started her job, writes Judge Adler.
The waitress had therefore refused to sign the tip-sharing agreement and had decided to keep tips for her at the restaurant when she was the only waitress there.
The employer claimed to have dismissed her for lack of loyalty because of comments that she considered defamatory that she posted on Facebook about the restaurant's tip-sharing policy. He had also argued that his decision to keep all tips was "nothing less than a theft".
Finally, the court concludes that there was "disturbing concomitance" between his dismissal and his refusal to sign the tip-sharing agreement "imposed by the franchisor". His comment on Facebook about tipping "appears as a pretext to leave the services of a waitress who refuses to endorse the policy of the franchisor," wrote the administrative judge Adler.
The judge also points out that "the employer can not blame him for keeping the tips that were due to him under the Act respecting labor standards".
He therefore cancels his dismissal of August 15, 2017, orders her to be reinstated in her job and to pay her, as compensation, the equivalent of the salary and other benefits that her dismissal deprived her of.