Bartender had numerous performance, attitude issues but completed probationary period
A British Columbia employer did not have just cause to fire a worker just after his probationary period ended, but reinstatement was not appropriate due to animosity and distrust between the worker, his co-workers, and management.
The worker was hired in September 2022 by Powell River Town Centre Hotel (PRTCH) to be a bartender in its pub. He had worked in the hospitality industry before, but it was his first job “in front of the house.”
The worker’s employment was subject to a probationary period outlined in the collective agreement consisting of 280 hours of work or three calendar months, whichever came earlier. The agreement also allowed the hotel to discharge an employee during the probation period if they were “unsuitable for status as a regular employee,” pursuant to the BC Labour Relations Code. However, employees who successfully completed their probation period could only be discipline or discharged for “just and reasonable cause.”
Before long, PRTCH became concerned with a number of performance issues. The worker told the hotel that his father had passed away, but after he went on bereavement leave he said that it was his cousin. There were also repeated errors with handling cash, unauthorized withdrawals from the pub’s cash float, poor treatment of co-workers, missed shifts from being hungover, and a distrust of PRTCH’s accounting department for no apparent reason.
Worker was coached
Management brought the cash handling and float issues to the worker’s attention, but he seemed reluctant to address them. He said that he took money out of the float for his tips, since the hotel was not legally able to withhold his tips. This concerned the hotel, since his position had little supervision and involved handling the liquor inventory and cash.
Others tried coaching the worker, including the accounting time and some of his co-workers. He was not otherwise disciplined.
After three months on the job, the worker became a union shop steward and became heavily involved in union activities. He wore a union button and passed them out to co-workers, and was involved in a contract ratification vote.
The hotel’s food and beverage manager found that the pub was short more than 100 pints of beer for the month of November, resulting in a $700 loss. This had never happened before. She discussed the matter with the worker, who admitted to “overpouring.” According to the worker, he acknowledged that he may have been overpouring and would try to do better, although he claimed that he didn’t usually pour the brand that accounted for much of the missing beer.
Fired after culpable absenteeism
In December, shortly after the worker completed his probationary period, he called in sick after having drank too much, leaving the pub short-staffed. Soon after, PRTCH terminated his employment for performance issues.
The union filed a grievance for wrongful dismissal, arguing that the worker had not been warned or otherwise disciplined and the hotel did not have just cause as required by the collective agreement for an employee who had completed his probationary period. The union also argued that the termination was likely motivated by anti-union animus, which could be inferred by the timing of the termination two weeks after the worker became a shop steward.
The arbitrator found that the food and beverage manager and pub staff were credible in their accounts of the worker’s performance issues, as they were consistent. The hotel also provided evidence of liquor shortages, culpable absenteeism, and the worker’s inability to receive feedback
The arbitrator also found that the bartender position involved being entrusted with handling cash and liquor inventory, which required “strict adherence and trust.” There were multiple occurrences of the worker demonstrating that he was unable to meet this performance standard and the worker admitted to some of them, such as overpouring. These were don’t without consideration of the hotel’s procedures or revenues and taking money from the float for his tips in particularly was serious misconduct, said the arbitrator.
The arbitrator determined that the worker’s issues warranted discipline and there was no reason to think that anti-union animus played a role in the termination decision, the arbitrator said.
No progressive discipline
However, the arbitrator found that the coaching the worker received was not enough to provide a specific warning of any consequences of not correcting his behaviour. The hotel could have discharged the worker while he was still on probation or extended his probationary period if it deemed him unsuitable, but it didn’t. As a result, the just and reasonable cause provision in the collective agreement applied and, without progressive discipline, there could not be just and reasonable cause, said the arbitrator in finding that termination was excessive.
However, the hotel presented evidence that co-workers didn’t want to work with the worker, there was no trust between it and the worker, the worker refused to accept responsibility for any wrongdoing, and the worker had animosity towards management. Given these factors, the arbitrator determined that reinstatement wasn’t appropriate and remitted the matter to the parties to decide on an appropriate remedy.
The arbitrator noted that had the employment relationship been viable, a three-week unpaid suspension would have been appropriate. See Powell River Town Centre Hotel Inc. and UNITE-HERE, Local 40 (Bennett), Re, 2023 CarswellBC 1116.
