Employer had concerns with worker’s performance but didn’t raise any major issues before dismissing him shortly after learning of union organizing
A British Columbia worker’s dismissal for poor performance has been overturned by the B.C. Labour Relations Board after it found the worker’s union organizing efforts played a partial role in the termination decision.
Gary Mechar was a professional cook who responded to an online advertisement for a full-time line cook placed by the Fox’n Hounds pub in Kamloops, B.C. Mechar had held two previous jobs in the restaurant industry and his resume stated he had experience as a line cook and other positions where he had hired, trained, and fired staff, managed food costing controls and inventory, oversaw catering and special orders, and performed all accounting functions.
The Fox’n Hounds management team liked Mechar’s experience and, following an interview, hired him starting July 9, 2017. However, it wasn’t too long before they began to wonder if Mechar truly had the experience that he claimed.
When Mechar started, the owners noticed he didn’t have the appropriate anti-slip footwear 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 shunted to slower-paced duties such as washing dishes and preparing food.
They decided to meet with Mechar three weeks into his employment on July 29, to discuss his job performance. The owners told him they didn’t believe he had the culinary experience and knowledge of professional 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 training 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 management began to search for kitchen staff, as things were becoming desperate. They provided Mechar with another week of training, after which his speed improved and no further complaints came from other staff.
Around this time, Mechar spoke to several employees who had concerns over management and working conditions. He thought union representation might help, so he approached 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 promoted 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. The owners were surprised Mechar knew about it and also that he cared, since they had never discussed with Mechar that he would be moved to any position other than that of a line cook.
The 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 sandwich 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 adequately respond to their concerns about his work performance. They decided to terminate his employment but, since they were in a tight staffing situation and it was the beginning 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. The 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 employment 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. The Fox’n Hounds owners acknowledged that one of them became 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. The only reason Mechar wasn’t terminated earlier in October — before the one owner was told of the organizing activities — was because the pub couldn’t afford to be short-staffed, said the owners.
The board accepted that the pub’s owners weren’t satisfied with Mechar’s work and believed he oversold his culinary experience. However, at the Sept. 14 meeting, they raised three issues — his pace, a missed meal order, and one order with burnt onions. The 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.
The 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.
The board also found it was unlikely that when one owner learned of the union organizing, 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 employees 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.
The board determined that Mechar’s termination 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. The matter of remedy 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.).
