opinions /interpretations required

[Taz]

A dilemina that not I face but several people I know.

When a waiter or waitress has a table skip out on them (Dine and dash) or for any other reason is short $$ at the end of their shift should the employer make the server pay that money. THe Employment standards act says

13. (1) An employer shall not withhold wages payable to an employee, make a deduction from an employee’s wages or cause the employee to return his or her wages to the employer unless authorized to do so under this section. 2000, c. 41, s. 13 (1).

Statute or court order

(2) An employer may withhold or make a deduction from an employee’s wages or cause the employee to return them if a statute of Ontario or Canada or a court order authorizes it. 2000, c. 41, s. 13 (2).

Employee authorization

(3) An employer may withhold or make a deduction from an employee’s wages or cause the employee to return them with the employee’s written authorization. 2000, c. 41, s. 13 (3).

Exception

(4) Subsections (2) and (3) do not apply if the statute, order or written authorization from the employee requires the employer to remit the withheld or deducted wages to a third person and the employer fails to do so. 2000, c. 41, s. 13 (4).

Same

(5) Subsection (3) does not apply if,

(a) the employee’s authorization does not refer to a specific amount or provide a formula from which a specific amount may be calculated;

(b) the employee’s wages were withheld, deducted or required to be returned,

(i) because of faulty work,

(ii) because the employer had a cash shortage, lost property or had property stolen and a person other than the employee had access to the cash or property, or

(iii) under any prescribed conditions; or

(c) the employee’s wages were required to be returned and those wages were the subject of an order under this Act. 2000, c. 41, s. 13 (5).

But its not exactly clear

[mander]

This would all be dependant on alot of factors. If they are simply the waitress/waiter then no..absolutely not. If they are serving someone say fast food and are short on the till they are at then I would say yes. If they cant give correct change and are short at the end of their shift, they make up the difference. Its not a waitresses fault if someone dashes.

[Taz]

This would all be dependant on alot of factors. If they are simply the waitress/waiter then no..absolutely not. If they are serving someone say fast food and are short on the till they are at then I would say yes. If they cant give correct change and are short at the end of their shift, they make up the difference. Its not a waitresses fault if someone dashes.

Whats your take on what the ESA says ?

[mander]

This is the one that makes me think the way I do.
(ii) because the employer had a cash shortage, lost property or had property stolen and a person other than the employee had access to the cash or property, or

The employee(waitress/waiter) doesn't have access to food thats been eaten by a patron. How can the employer possibly make them pay for food that someone ordered, ate and walked out without paying? Its different if you are serving over the counter food and you are running the cash as well and are short money. Fast food restaurants can and do deduct any monies short in the till from the sales receipts.

[Dr.Dan]

I don't know, but isn't collecting payment part of the responsibility of the server?
If so, then it makes sense that they have to pay for someone that does the 'D&D'

But do I think it's fair that it should be placed on the low waged server? No... But it is.

Now the leagality of it, well, it seems the food industry has it's own rules and may now be covered under the rules you posted above..

[Bogie]

EDIT: After re-reading your post, I must add this comment:

Your post covers 2 different scenarios. "Dine and Dash" and "shortage of funds after shift" are 2 different things. My comments below cover the "Dine and Dash" situation.

Shortage after shift has too many unanswered questions and needs more information supplied to the individual situation.

-------------------------------------------------------

I have heard of this happening before, but ....

A few thoughts come to mind that may favour the employee:

1. If an employee of WalMart (or any other retail store), is running the cash register in a department, and someone steals (shoplifts) something from that department, is that employee responsible to pay for the missing goods? No, of course not ... similar situation.

2. A gas station has similar situations - many times - where a customer/thief fills up and takes off without paying. The employee is not responsible to cover the missing funds. Fortunately for most service station owners, they have video surveillance installed and can call the police with a license number, vehicle description, and have video proof. Same applies here - it is the responsibility of the employer to secure payments for services rendered or goods supplied. As mander stated, the employee did not make a mistake in collecting monies owing, but had a customer leave without paying.

3. This is a pure case of theft. Call it "dine and dash", or whatever terminology that would be used, but it is the same as shoplifting. This is a police matter and not "stick it to the employee".

I would say that the above are all arguments for purposes of showing that the employer is responsible, not the employee.

Did the employee sign any employment contract agreeing to such financial responsibility? Even if they did I would argue the point.

Personally, I don't see how an employer could legally deduct monies from an employee for theft by a customer.

[Frogy]

This is common practice in the restaurant industry and employee's are supposed to be made aware of the practice when they accept employment. Not all establishment apply this method however, if one particular waiter/waitress has this happen too often they are most likely out of a job.

[Swordfish]

When I worked at Swiss Chalet and a customer walked out the Waiter/Waitress had to cover the cost of the meal from their tips which was considered part of their wages.

They were also made aware of this when they were hired this was union policy

[Mouse]

If, as Fishy said, it's negotiated up-front, when they accept the terms of employment, then they have to tough it out.


(ii) because the employer had a cash shortage, lost property or had property stolen and a person other than the employee had access to the cash or property,

But this part intrigues me. The customer had access to the cash (still in their pocket) and the property (still in their stomach, accidents excepted). This looks like an out to me, in the absence of any prior agreement on the matter.

[dakotaeagle]

so if the waiter/waitress has to pay when they are short does this mean they get to keep any extra they are over?

My guess would be probably not. I think anytime there is an overage it should go into a pot to help when some one dashes on the dinner tab

[Nuke]

I have class soon, so this is going to be quick :)


But its not exactly clear

This is common place in our legal system. We operate on a "Common Law" legal system. I put it in quotes because technically it isn't Common Law since we've seen the addition of many statues over the past few decades, but it is still called Common Law because of its roots in English Common Law. In our system, a lot of interpretation is left to judges.


This is the one that makes me think the way I do.
(ii) because the employer had a cash shortage, lost property or had property stolen and a person other than the employee had access to the cash or property, or

The employee(waitress/waiter) doesn't have access to food thats been eaten by a patron. How can the employer possibly make them pay for food that someone ordered, ate and walked out without paying? Its different if you are serving over the counter food and you are running the cash as well and are short money. Fast food restaurants can and do deduct any monies short in the till from the sales receipts.

The current, modern standard of interpreting the law, as far as I know, is done in three ways. A statue is interpreted by taking into consideration the literal meanings of words, the presumed intended meaning of the statue, and the presumed intention of the overall document. Trying to be objective here, it appears that what was trying to be said there, was that an employees wages can be withheld or deducted if it the employer is not reasonably capable of paying them because of a cash shortage, lost property, stolen property, etc etc. It seems that the magnitude of these losses would have to be more than a single dinner, however, I guess it depends on how profitable the restaurant is. There's definately room for debate here but if this was what an employer brought to court when being sued by an employee, I would think that there would be a decent chance for the employee to win.

What I see as the most relevant part of the statute here is Subsection 5 b ii ... " (iii) under any prescribed conditions; or". Employers appear to be able to withhold or deduct an employees wages under prescribed ("to lay down a rule" - Websters) conditions. Thus, if the terms of employment stated that the employee can/will be responsible for someone who skips out on their bill... that appears to satisfy that condition.

So overall, my opinion is that it is legal, so long as the employers method of fufilling that condition doesn't conflict with any other statute. I don't know whether it does or not :d

Class time! I'll take a look at this later on as I might have misread or missed something.