Foreign workers file class-action lawsuit against Denny’s restaurants in B.C.

Nearly two years ago, Herminia Vergara Dominguez left her two young children in the care of her mother and travelled from the Philippines to Canada.

Recruited under Canada’s Temporary Foreign Worker Program, Dominguez crossed the seas to serve food and beverages at a Denny’s restaurant in Vancouver.

Her employment contract assured her of 40 hours of work per week, and additional 50-percent pay over her regular wages for overtime.

But according to Dominguez, these terms and other provisions in the contract were not followed by the employer.

Now, Dominguez finds herself as a representative plaintiff in a $10-million class-action lawsuit against Northland Properties Corporation and Dencan Restaurants Inc., which run Denny’s restaurants in B.C., for alleged breach of contract.

Northland Properties is the parent company of Denny’s 24-Hour Restaurant in Canada, and other establishments such as Sandman Hotels, Inns & Suites; Moxie’s Classic Grill; Shark Club & Grill; and Northland Asset Management Company.

On January 7, a notice of claim under the Class Proceedings Act was filed by lawyers representing Dominguez and over 50 other former and current employees of Denny’s, who were brought over to Canada under the Temporary Foreign Worker Program, starting in December 1, 2006.

The notice includes claims in addition to allegations the employer failed to provide the promised 40 hours of work per week, and to correctly calculate and pay overtime wages.

It alleges that the employer did not pay for the cost of the workers’ air travel between the Philippines and Canada. The notice also says that the plaintiffs paid about $6,000 each to employment agencies hired by Northland Properties to recruit workers, which it cites as a violation of B.C. labour laws.

The plaintiffs’ allegations have not been proven in court.

In addition to general damages and other costs, the lawsuit specifically asks for $9 million in punitive damages for the defendants’ “outrageous and malicious conduct”.

These alleged actions include the termination of the employment of class member Alfredo Sales “as a consequence of his inquiries into the payment of his outstanding overtime”. Sales also asked for the payment of the cost of his two-way air travel between the Philippines and Canada.

The notice also claims that class member Maria Genalyn Reyes was threatened to be sent home if she accepted a position at Wendy’s, a restaurant chain competitor, instead of renewing her contract with Denny’s.

Brent Armstrong is the director for marketing for Denny’s Canada. When reached for comment about the case, Armstrong told the Straight in a brief phone interview today (January 11), “Their claims have no merit. That is the extent of our quote.”

Dominguez’s employment contract and work permit will expire on January 25.

According to the notice of claim, Denny’s has made no arrangements to pay for her travel to return to the Philippines as required by the contract.

In a media release dated January 10, Christopher Foy, one of the lawyers for the plaintiffs, said, “These workers were encouraged to come to Canada with a set of promises that have never been met—they have done their part but the Defendants have not lived up to their end of the deal.”

Comments

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21 Comments

Ulysses Baritugo

Jan 11, 2011 at 1:56pm

This one seems to violate immigration regulations for hiring of temporary workers which states under Section 203 (d):whether the wages offered to the foreign national are consistent with the prevailing wage rate for the occupation and whether the working conditions meet generally accepted Canadian standards.

CIC had also implemented a Monitoring Initiative for employers under the program.

"As a participant, you have voluntarily consented to an Employer Compliance Review by HRSDC/Service Canada. Under such a review, you may be asked to submit documentation demonstrating that you have respected the terms of employment (e.g., wages, working conditions, etc.) for the temporary foreign workers you hired. The documentation requested will vary depending on the skill level of the position(s) in question. If you employ temporary foreign workers in managerial (NOC O) and higher-skilled (NOC A & B) occupations, you will be asked to demonstrate that:

* you are paying the prevailing wage;
* your temporary foreign workers’ main job duties are consistent with the occupation specified in the LMO confirmation;
* your temporary foreign workers are working full-time hours as defined on the LMO confirmation; and
* you are providing safe working conditions.

If you employ temporary foreign workers in occupations requiring lower levels of formal training (NOC C & D) occupations, you will also be asked to demonstrate that:

* a signed employer-employee contract is in place;
* you are providing private health care coverage until the temporary foreign worker is eligible for public health insurance;
* you have registered the temporary foreign worker with the appropriate provincial workers compensation/workplace safety insurance plans;"

These are just CIC terms. It will definitely affect the company's ability to procure cheap labor from third world countries.

J R Day

Jan 11, 2011 at 3:54pm

It would seem that a 'few' of the Sr. officials in the Human resources Dept of the company in question have only looked at the short term advantage of cheating these employees and not looked at the actual regulation put in place to control the greed that some employers show. I would hope they are found guilty of these practices and pay the full price. Maybe then they will look to their 'business plan', and change the overseas recruitment policy and offer a fair wage to CANADIANS.

Unschooled

Jan 11, 2011 at 7:44pm

If the regulations noted above are true, then these employers know that the federal government will rarely conduct performance audits on the NOC C&D temporary foreign workers.

Is that not a government incentive for employers to treat these people poorly?

And why does Canada even allow temporary foreign workers for low skilled jobs in major urban centres?

Further, I think we should ask Christy Clark these questions. After all, Denny's is her favourite restaurant.

rebecca

Jan 12, 2011 at 2:52am

As a reader from Alberta it matters not what province this occured in taking advantage and exploiting foreign workers is unacceptable. I hope our court system will stand behind these workers and see that their contracts are fulfilled. Denny's is a large franchise that has been in operation many years, shame on them and all management involved no doubt this is happening in more than one location. Good luck to the honest workers who just want to make a living. Perhaps this will be one case where the rich do not get richer.

ML

Jan 12, 2011 at 10:14am

This has been a common practice by employers. The HRSDC do not even have machineries to monitor these illegal practices. If a migrant made a small mistake even in filling up his/her application, the CIC is quick to deport them and replace them with new workers. The TFWP is flawed and need a thorough overhaul.

Disgusted

Jan 12, 2011 at 11:51am

And this claim is just the tip of the iceberg! I talked to someone from the Philippine Women who told me several horror stories of Live-in Caregivers being exploited by their employers. Many work 60-80 hours a week for no overtime and some have even been sexually abused and held in virtual slavery.

The temporary foreign worker program (and the Live-in Caregiver program) has to be abolished. If we need these workers so bad why not let them in with landed status! The truth is these programs are not needed as long as there are unemployed in Canada. The only reason that Canadians don't take these jobs is that they have crappy pay. Why does the government preach that it shouldn't interfere with markets except when it comes to the supply and demand for workers?

baracuda

Jan 12, 2011 at 5:17pm

i believed the employer or the owner itself dont know that these things are happening.northland who owns dennys is a big company,it maybe possible that there are corrupt managers within the company that benefited in hiring foreign workers from the philippines.

baracuda

Jan 12, 2011 at 5:44pm

it maybe possible that the owner of dennys franchise here in BC which is Northland properties dont know that these things are happening.it maybe possible that there are corrupt officials or managers within the management level that handles foreign workers.

Chet

Jan 12, 2011 at 7:24pm

I guess it's McDonald's egg McMuffinns for breaky from now on

Dong Edmilao

Jan 12, 2011 at 9:08pm

This is very interesting. I have heard that some private employers cheat their nannies and other care givers by engaging in these common abuses, namely, asking them to work overtime without pay, sometimes asking them to work in the food establishments owned by their employer, making them take care of more children than what their contract called for, etc. So, what else is new? Big employers, small private employers are all motivated by greed. I think it's time that the federal government seriously audit their CIC programs especially this one. Moreover, the provincial government should also step in to look into these abuses. However, we should not just rely on these government audits but must also be vigilant and fight these abusive employers in the court of law.