Tribunal upholds ruling against Port Moody food truck for unpaid wages

A person pays with cash at a Halal food truck in New York City, on July 13, 2022. (Julia Nikhinson / AP)

The B.C. Employment Standards Tribunal upheld a determination ordering a Port Moody food truck operator to pay a former worker thousands of dollars in unpaid wages, overtime, vacation pay, and business expenses.

In a decision released Nov. 6, tribunal member Alysha Bennett dismissed BC Taco Restaurant Group Ltd.’s attempt to overturn an August 2024 finding it had contravened the Employment Standards Act (ESA) in its treatment of former employee Diego Diaz Gracian.

BC Taco operates the BC Taco food truck, which has been a regular vendor at Rocky Point Park and events around the Tri-Cities.

The original determination found Diaz – who worked for the company from 2019 to 2023 – was improperly denied wages, gratuities, overtime, statutory holiday pay, vacation pay and reimbursement for business-related expenses. The adjudicator also levied three administrative penalties against the company.

BC Taco appealed, arguing the delegate had erred and that new evidence became available after the ruling. But the tribunal rejected every ground of appeal.

The company attempted to file four employee statements and three screenshots of text messages as “new evidence,” most of them signed months after the original determination.

The statements were intended to show that Diaz had acted as a manager – a classification that would remove some ESA protections.

But Bennett concluded the evidence should have been produced during the investigation.

BC Taco argued some former employees were reluctant to provide statements, and that text messages were overlooked on a company device. The tribunal was not persuaded.

“The time and place to submit information is during the investigation of the complaint,” Bennett wrote, citing long-standing precedent that employers cannot “lie in the weeds” and then attempt to supplement the record on appeal.

Even if the material had been admitted, she added, it would not have changed the outcome. The adjudicator had already considered Diaz’s limited involvement in hiring, scheduling and ordering, but found these tasks were administrative and subject to owner approval – not managerial decision-making.

Bennett also rebuked the company for apparently using AI to cite case law, nothing that several cases cited “either do not exist, or do not support the proposition for which they were cited.”

Bennett said this raised “serious concerns about the reliability of the sources,” pointing to documented cases where litigants submitted fictitious legal authorities produced by ChatGPT.

BC Taco further argued the adjudicator failed to consider “advance payroll vouchers” showing that Diaz owed the company money.

But the tribunal found the investigation report did address those vouchers – and that, under the Employment Standards Act, employers cannot withhold wage advances unless the employee has agreed in writing through a clear “assignment of wages.”

The vouchers provided by BC Taco did not meet that legal threshold.

In its reply submissions, BC Taco for the first time alleged errors of law in the adjudicator’s finding that Diaz was not a manager. The tribunal ruled those arguments were procedurally improper – new issues cannot be raised at the reply stage.

Even if they had been properly raised, Bennett wrote, the company’s arguments had “no reasonable prospect of success.”

The adjudicator’s factual conclusions were supported by evidence showing Diaz had no independent authority over staffing, budgets, or major business decisions.

With all grounds of appeal rejected, the tribunal confirmed the original determination in full, including all unpaid wages, expenses, penalties, and accrued interest.

“I find no reason to change the determination,” Bennett wrote in ordering the August 2024 ruling to stand.

By Patrick Penner, Local Journalism Initiative Reporter, Tri-Cities Dispatch