Canadian Employment Law Today - sample

Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends an interview, hired him starting July 9, 2017. However, it wasn't too long before they be- gan to wonder if Mechar truly had the expe- rience that he claimed. When Mechar started, the owners noticed he didn't have the appropriate anti-slip foot- wear necessary for working in a professional kitchen. He also had to be trained on his role more than they expected and seemed slow to get the hang of things. In addition, other employees complained about the speed at which he worked, as he was unable to keep up on the line and as a result had to be shunt- ed to slower-paced duties such as washing dishes and preparing food. ey decided to meet with Mechar three weeks into his employment on July 29, to discuss his job performance. e owners told him they didn't believe he had the cu- linary experience and knowledge of profes- sional kitchens that they thought he had, but Mechar responded by claiming he needed more training in order to work faster — he said he had only received four hours of train- ing on the line in 12 shifts worked. He also retorted that he had observed the other cooks and they weren't faster than he was. After the meeting, Fox'n Hounds man- agement began to search for kitchen staff, as things were becoming desperate. ey pro- vided Mechar with another week of training, after which his speed improved and no fur- ther complaints came from other staff. Around this time, Mechar spoke to several employees who had concerns over manage- ment and working conditions. He thought union representation might help, so he ap- proached the B.C. Federation of Labour and two unions and began researching how to unionize and create a new trade union. By mid-September, Mechar wanted to increase his hours and was concerned over the rumour a co-worker was going to be pro- moted to kitchen manager. He told other co- workers he would be upset and would quit if the promotion happened and asked to meet with the owners to discuss it. e owners were surprised Mechar knew about it and also that he cared, since they had never dis- cussed with Mechar that he would be moved to any position other than that of a line cook. e owners also told Mechar that he would need to improve his performance if he wanted more hours — noting that Mechar had missed an order when he was alone in the kitchen and had presented a steak sand- wich with burnt onions on top. One of the owners told Mechar that he couldn't be trusted alone in the kitchen. Following the September meeting, the owners felt Mechar wasn't going to ade- quately respond to their concerns about his work performance. ey decided to termi- nate his employment but, since they were in a tight staffing situation and it was the begin- ning of their busy season, they would wait. Because of the staffing situation, Mechar's hours were increased to full time. By early October, Mechar's research into unionizing had gotten more than half of the kitchen staff to commit to signing union cards. A couple of co-workers asked him about how the organizing was going, but the kitchen manager overheard. Worker passes probation On Oct. 10, Mechar was notified that his three-month probationary period had elapsed and he could sign up for the pub's benefit's package. e same week, two new employees joined the kitchen staff. According to the owners, after the new employees had worked a couple of shifts, they decided they were going to work out and it was time to terminate Mechar's employ- ment on his next shift. A couple of days later, the kitchen manager told one of the owners about Mechar's union organizing efforts, but he didn't tell the other owner. When Mechar arrived for his next shift on Oct. 18, he was terminated and a new schedule was posted showing one of the new employees working Mechar's shift for the rest of the week. Mechar filed a labour complaint, claiming he was wrongfully terminated because of his union organizing efforts. e Fox'n Hounds owners acknowledged that one of them be- came aware of his unionization actions and they would prefer not to have to deal with a union, but the decision to terminate Mechar was based on his job performance and the fact that the experience on his resumé was exaggerated. e only reason Mechar wasn't terminated earlier in October — before the one owner was told of the organizing activi- ties — was because the pub couldn't afford to be short-staffed, said the owners. e board accepted that the pub's own- ers weren't satisfied with Mechar's work and believed he oversold his culinary ex- perience. However, at the Sept. 14 meet- ing, they raised three issues — his pace, a missed meal order, and one order with burnt onions. e first issue was general and appeared to have improved somewhat since the July meeting, while the other two were minor and didn't provide just cause for dismissal, the board said. e board found that a few weeks after the meeting, Mechar was informed he had passed his probationary period and he could join the benefits plan. His hours were also increased and, as far as he was concerned the signs pointed to his performance being satisfactory at that point. e board also found it was unlikely that when one owner learned of the union orga- nizing, he didn't tell the other. Given their regular communication about Mechar's performance issues, it was more likely both were aware of the circumstances when they terminated Mechar's employment, said the board. In addition, it was also unlikely that only a successful shift or two by new employ- ees would be the impetus to move forward with Mechar's termination when concerns about staffing were so high. Instead, the discovery of Mechar's union activity was at least partly a factor in the timing. e board determined that Mechar's ter- mination was at least partly because of the pub owners' anti-union animus, and the pub didn't have just cause to dismiss him based on performance. e matter of rem- edy was left to be worked out by Mechar and the pub. See Mechar and Hunter-James & Associates Inc., Re, 2018 CarswellBC 267 (B.C. Lab. Rel. Bd.). 6 | March 14, 2018 Employee was told he had passed his probationary period « from EMPLOYER'S on page 1 to unload this machine would have made Mr. Pinto's handling of the machine danger- ous," the court said. "It is inexplicable why Mr. Pinto deviated from the accepted prac- tice, and from his own practice on so many previous occasions." Since there were no accepted practices or standard training for the curb machine unloading, the court found Cobra Float's practice of regular safety meetings and in- formal discussions reasonable measures to ensure the safety of Pinto and other drivers, along with providing wood blocks and other safety equipment to drivers. ese measures and relying on Pinto's experience and skills to perform the task safely satisfied the stan- dard of due diligence for the company and Pinto's actions causing the accident were un- foreseeable. e court dismissed the charges against Cobra Float. For more information see: • Ontario (Ministry of Labour) v. Cobra Float Services, 2017 CarswellOnt 17986 (Ont. C.J.). Worker didn't follow accepted practice « from ONTARIO COMPANY on page 2

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