Hotel, Restaurant & Cafeteria Employees Union, Local 75 v. St. Hubert Bar-B-Q Ltd.
[1983] OLRB Rep. February 253
1042-82-U Hotel, Restaurant & Cafeteria Employees Union, Local 75, Complainant, v. St. Hubert Bar-B-Q Ltd., Respondent
BEFORE: Pamela C. Picher, Vice-Chairman and Board Members F. W. Murray and W. F. Rutherford.
APPEARANCES: Alick Ryder Q. C. and Diane Godin for the applicant; J. P. Wearing and D. Wexall for the respondent.
DECISION OF THE BOARD; February 15, 1983
The union has filed a complaint under section 89 of the Act alleging that the grievor, Ms. Diane Godin, was discharged by the employer contrary to the Labour Relations Act. The union maintains that the employer's motivation for discharging Ms. Godin was anti union animus, in breach of section 66(a) of the Act which provides as follows:
No employer ...
(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act.
The evidence establishes that the grievor was the single employee responsible for the union's organizing drive at the employer's premises. She contacted the union and signed up fellow employees as union members. There is no evidence, however, to suggest that the employer became aware of the organizing drive until shortly after the application for certification had been filed on July 19, 1982. Moreover, there is no evidence to suggest that the employer was aware of the grievor's role in the union's drive for certification prior to his discharge on August 24, 1982. The Board must conclude from the undisputed evidence that the employer first learned about the grievor's role in the union through a letter dated August 27th, three days following her discharge. In this letter the employer was informed that the grievor would be one of the three persons representing the employees in negotiations for a collective agreement.
The incident giving rise to the grievor's discharge occurred on August 24, 1982. The grievor, a waitress, was assigned to a smoking section of the restaurant. She complains that on the evening of August 24th she was apportioned an unduly high percentage of the customers. As the evening progressed, she found the situation intolerable. As a result, he walked off the floor, left the restaurant and was subsequently discharged.
The respondent notes that it is not unusual for the smoking sections to attract more customers than the non-smoking sections. Moreover, the grievor was among the more experienced waitresses on the floor that evening. Under these circumstances, the respondent maintains it is not surprising that the grievor drew a somewhat larger share of the customers. It is the submission of the union, however, that the overloading of the grievor's section cannot be explained by these factors. The union asks the Board to conclude that in the absence of an adequate explanation the motivation for the grievor's treatment must have been anti-union animus contrary to the Act.
Ms. Godin testified that when she couldn't take anymore of what she considered to be an unfair overloading of her section of the restaurant, she left the floor, went to the locker room, changed her clothes and left. There is some contradiction in the evidence as to what was said in the locker room but the Board is prepared to accept Ms. Godin's testimony in this regard. She stated that she spoke to Mr. Jeff Gillies who is the assistant kitchen manager and told him to tell Ms. Raymonde Perreault, the assistant dining room manager and the person Ms. Godin viewed as responsible for overloading her section, to "fuck off'. She stated that while she was in the washroom, Ms. Perreault came into the locker room to ask what was going on. Mr. Gillies told Ms. Perreault that Ms. Godin was leaving. A short while later Ms. Perreault came into the locker room again, this time to ask for the order slips relating to the tables Ms. Godin was waiting on at the time she left the floor. The grievor stated that neither Mr. Gillies nor Ms. Perreault indicated that if she left the restaurant that night she would be dismissed.
Mrs. Alberta Roy, the dining room manager, was not present at the time of the incident. After hearing about the situation from Ms. Perreault, however, she called Ms. Godin to inquire into what had happened. Ms. Godin apologized and stated that she wanted to come back to work. Ms. Roy told Ms. Godin she would phone back the next day to let her know if she should come in for her shift. The next morning, though, it was Mr. John Hare, the restaurant manager, who called Ms. Godin. He stated that he'd heard that she had walked off the floor the night before and asked her what had happened. Through their conversation Mr. Hare indicated that given the circumstances of her departure, it was his view that she had quit her job. He stated that he would not be allowing her to return.
Mr. Hare stated to the Board that he considered Ms. Godin's act of walking off the floor, leaving customers unattended and putting the restaurant in a difficult situation as an act of resignation. Ms. Perreault confirmed in her evidence that when Ms. Godin walked off the floor, her customers were left without coverage for a period of time. Moreover, the orders at Ms. Godin's tables had to be reconfirmed with the customers. With each remaining waitress taking an extra table and Ms. Perreault helping out, the situation was brought back in control. Mr. Hare spoke to Ms. Godin about the adverse effect that her conduct had on the customers and the potential problem for the restaurant's reputation. He then informed her that she was not welcome back. Mr. Hare asserted that the above noted considerations were the only factors that caused him to not allow Ms. Godin to return to work.
In a matter such as this section 89(5) of the Act places the onus of proof on the employer to show that the employer did not act contrary to the Act by refusing to continue the employment of an employee. In Barrie Examiner, [1975] OLRB Rep. Oct. 745, the Board at paragraph 17 described the nature of this burden as follows:
What then is the extent of the burden of proof that has been shifted by statute to the respondent? The Act speaks of the burden of proof "that any employer . . . did not act contrary to this Act". In its earlier decisions, this Board has stated that, even if only one of the reasons for a discharge related to union activity, the discharge would nevertheless constitute a violation of the Act. For a review of this jurisprudence, see Delhi Metal Products Ltd. [1974] O.L.R.B. 450. In other words, the appearance of a legitimate reason for discharge does not exonerate the employer, if it can be established that there also existed an illegitimate reason for the employer's conduct. This approach effectively prevents an anti-union motive from masquerading as just cause. Given the requirement that there be absolutely no anti-union motive, the effect of the reversal of the onus of proof is to require the employer to establish two fundamental facts — first, that the reasons given for the discharge are the only reasons; and, second, that these reasons are not tainted by any anti-union motive. Both elements must be established on the balance of probabilities in order for the employer to establish that no violation of the Act has occurred.
On the evidence before us, the Board is satisfied that Mr. Hare's stated basis for refusing to continue the employment of Ms. Godin reflects his entire reason for so doing. The Board accepts that Mr. Hare was upset by the fact that Ms. Godin left her customers unattended and concerned about the adverse effect that this could have on the restaurant's reputation. Even if the Board considered the action taken by Mr. Hare to be harsh, the Board could not conclude, on that basis alone, that the employer had contravened section 66(a) of the Labour Relations Act. There is no evidence to suggest that either Mr. Hare or Ms. Perreault either disliked the union or was, at the time of Ms. Godin's discharge, even aware of her role in the organization of the union. There is absolutely no basis upon which to infer that the employer's decision not to continue the employment of Ms. Godin was tainted by anti-union animus contrary to the Act.
Accordingly, for the reasons set out above, the Board dismisses the complaint.