Employer can’t use marijuana use, insubordination as reasons for dismissal without prior warning when it waited until holiday pay request to fire worker
An Ontario employer’s attempt to use marijuana smoking and insubordination as reasons for dismissal of a worker has fallen short since it didn’t discipline the worker at the time of misconduct and instead dismissed the worker after a demand for public holiday pay.
Martello Unit 377 is a non-profit social club and restaurant bar for veterans of Canada’s army, navy, and air force, along with civilians, run by the Army Navy and Airforce Veterans in Canada and located in Kingston, Ont. On Feb. 22, 2017, the club hired Constance Brewer to work as a part-time kitchen assistant.
Slightly less than two months after she was hired, after Good Friday in mid-April, Brewer asked the second vice-president of the club for public holiday pay. The second vice-president said she didn’t think the club paid public holiday pay to part-time employees, but she would speak with the club’s accountant to confirm if this was the case.
On May 1, Brewer was promoted to the position of kitchen supervisor after the existing kitchen supervisor decided to take a leave of absence. Brewer remained employed on a part-time basis and the second vice-president still hadn’t provided her any information on the club’s policy on public holiday pay.
After Brewer’s promotion to kitchen supervisor, tension with management increased. She refused to use hamburger meat the club had purchased and demanded that bottled beer be used to make beer batter rather than beer the club supplied — she felt reheating cooked hamburger meat and using leftover beer from the taps wasn’t sanitary. She also used paper boats on wing night and once ordered too much bread for the kitchen, causing increased costs. On another evening, she refused to take food orders after 5:45 p.m. even though the kitchen closed at 6 p.m.
On May 12, the second vice-president saw Brewer smoking marijuana outside during working hours. Five days later, Brewer was asked to move plastic dishwasher trays from near the fridge to a trailer because the heat from them made potatoes stored there spoil quickly. She was given two more reminders but failed to do it and the second vice-president eventually did it herself.
The second vice-president later testified that after the marijuana incident, the club thought of terminating Brewer’s employment, but the restaurant was busy and it would be difficult to find a new cook. She also felt she could use her military background to help people rather than “writing up” Brewer for calling the police on her.
Shortly before the Victoria Day holiday on May 22, Brewer again asked the second vice-president about public holiday pay. This time, the second vice-president said definitively that Martello Unit 377 didn’t provide public holiday pay to part-time employees.
Brewer insisted that she was entitled to public holiday pay and tried to give the second vice-president a pamphlet she had printed from the Ontario Ministry of Labour website. The second vice-president refused to take the pamphlet and angrily said they would talk about it later. She also said the accountant was “taking care of things.”
On June 1, the second vice-president and the club’s president met with Brewer at the end of her shift and gave her a written “official verbal warning” for cutting off orders early and her “sporadic outbursts and abrupt behaviour,” along with two written warnings. The first written warning was for her consuming marijuana during working hours, failing to move the dishwasher trays, and using disposable paper containers instead of glassware during a period that wasn’t busy, contrary to policy. The second written warning cited a failure to send staff home when it wasn’t busy, failing to complete the bread order in a timely fashion — Brewer had argued that there was sufficient bread in the freezer at the time — failing to fulfil wing orders due to a shortage caused by her not checking the stock, and not listing spoilage or employee lunches on the food write-off sheet. All of these indiscretions hurt the club’s bottom line, management said.
Brewer read the three warnings and asked if she was “being fired.” The president answered “yes,” which surprised Brewer because she hadn’t been told of any concerns with her job performance to that point. She also thought she had increased sales in the restaurant and took food safety and other responsibilities of the kitchen supervisor position seriously.
Brewer filed an employment standards complaint, saying that all the misconduct listed on the warnings was untrue with the exception of cutting of orders early on wing night because the chef told her to do so. In particular, she denied smoking marijuana at work.
An employment standards officer found Brewer was fired as a reprisal for her public holiday pay request and issued several orders to pay Brewer. Martello Unit 377 appealed to the Ontario Labour Relations Board, arguing Brewer was terminated for smoking marijuana and insubordination.
The board found it hard to believe that the second vice-president didn’t immediately confront Brewer when she saw her smoking marijuana outside the workplace and her reasoning that she wanted to help people was “nonsensical.” It also wasn’t credible that if there were several concerns with the way Brewer operated the club’s kitchen, no-one spoke to her about it before issuing the warning letters. No communication of concerns or warnings were issued until after Brewer asked about public holiday pay a second time, which angered the second vice-president, the board said.
The board dismissed the appeal and upheld the orders to pay, finding Brewer’s termination was a reprisal.
For more information see:
• Army Navy and Airforce Veterans in Canada Martello Unit 377 v. Brewer, 2018 CarswellOnt 12394 (Ont. Lab. Rel. Bd.).
