Ontario Labour Relations Board
File No.: 0005-00-U Date: November 30, 2000
Applicant: John Gallagher Responding Party: Richtree Markets Inc.
Before: Patrick Kelly, Vice-Chair.
Appearances: John Gallagher appeared on his own behalf; Marsha Lindsay, Stephen Bogardo, Gareth Moore, Robert lzsak, Maria Kotsos, Daniel Tesfaye and Domenic Terrante appeared on behalf of the responding party.
DECISION OF THE BOARD
1This is an application filed under section 96 of the Labour Relations Act, 1995, S.O. 1995, c.l (“the Act”) alleging violations of sections 5 and 72 and of the Act.
2The hearing in this matter took place on September 15, 2000. The applicant (also referred to as “Mr. Gallagher”) was unrepresented, and I instructed him that, while he was entitled to participate on his own behalf, he bore the risk of participation without counsel in a legal proceeding. The applicant indicated that he understood and accepted that risk.
Background
3Mr. Gallagher was employed as a bartender with the responding party (“the company”) from April 1999 until March 27, 2000, when the company terminated his employment.
4The issue in this case is what was the reason for the termination. The applicant alleged that he was performing his job well, and that he was actively seeking the assistance of a trade union to represent the company’s employees, when, shortly thereafter, he lost his job. He alleged he was dismissed because of his union activity.
5The company, on the other hand, took the position that it had absolutely no knowledge of Mr. Gallagher’s union activities, and that, in any event, he was terminated (along with another employee) because of poor sales in the bar portion of the company’s restaurant. The company denied that the termination of Mr. Gallagher was motivated by any anti-union animus.
6At the conclusion of final argument, I made an oral ruling dismissing the application. The reasons for that ruling follow below.
The Evidence
7In his examination-in-chief, Mr. Gallagher spent a substantial amount of time giving evidence about what he considered his above-average performance as a bartender with the company. Somewhat less time was spent outlining the efforts he alleges he made to bring a union into the workplace. Very little of his evidence went to the issue of the employer’s knowledge of Mr. Gallagher’s organizing efforts. He claimed that he approached quite a number of his co-workers about becoming represented by a union, but he called no witnesses nor tendered any admissible evidence that corroborated his claims. In any event, in cross-examination, he admitted that the contacts with employees for the purpose of discussing trade union representation were very discrete, and not done in such a way as to invite the notice of management. He further admitted that the organizing campaign involved neither distribution of union literature nor the signing of any membership cards on company premises. He attended a single meeting with the Canadian Auto Workers off company premises in December 1999. He admitted that while he was employed with the company, the Canadian Auto Workers took no action at the workplace, and did not ask Mr. Gallagher to endeavour to get membership cards signed by employees.
8Mr. Gallagher claimed that the establishment by the employer of an employee association for the purpose of dealing with employee concerns was proof of the employer's knowledge of his activities. There was no evidence offered with respect to the circumstances giving rise to the formation of this association, a meeting of which Mr. Gallagher attended near the time of his termination. In the absence of any such evidence, it is impossible to draw any conclusions about the connection between this association and the applicant’s termination or the alleged knowledge by the employer of Mr. Gallagher’s union activities.
9Mr. Gallagher presented himself as someone who stood up to his employer from time to time. It would appear that in December 1999 Mr. Gallagher challenged the authority of the management to schedule employees on certain statutory holidays, and as a result of that challenge, certain compromises were reached.
10Mr. Gallagher referred to a couple of isolated negative comments about trade unions made by a few managerial employees, which were not pleaded in his application. These comments were said to have been made at least four or five months prior to his termination. Mr. Gallagher was unsure as to the connection between those comments then and his termination near the end of March 2000.
11In his examination-in-chief, Mr. Gallagher alleged that he was terminated in a high-handed and very public manner following an employee recognition celebration. In cross-examination, he admitted that, following the event, he was taken aside by the company’s senior human resources representative, Mr. Stephen Bogardo. They went to a table in the mezzanine of the restaurant in which Mr. Gallagher worked, at a location where no one could overhear their conversation. It was common ground that the table was in the line of vision of other employees. Mr. Bogardo indicated to the Board that there are no available areas in the restaurant that afford absolute privacy for meetings with staff. Mr. Bogardo informed Mr. Gallagher that his bar sales were too low, that it appeared the working relationship could not be improved, and offered Mr. Gallagher two weeks pay in lieu of notice and a letter of reference.
12It was common ground that the company never alleged cause for Mr. Gallagher's termination, it did not previously discipline him in any formal sense, and it did nothing to impede his application for employment insurance benefits. Mr. Gallagher admitted that his immediate supervisor had mentioned the sales performance of the bar on one or two occasions, but he insisted that he never understood the company held him responsible for the poor performance. The applicant did not seriously challenge the evidence presented by the company at the hearing regarding below average sales in his area of responsibility, although he suggested this had more to do with a lack of supplies and equipment than any problem with his own performance.
13The company called six witnesses, including a co-worker of Mr. Gallagher who was the bartender on another shift. With the exception of Mr. Bogardo, they played no role in Mr. Gallagher's termination. They all professed to have no knowledge of Mr. Gallagher's union activities, and they all remained firm on that point in cross-examination. The co-worker, Daniel Tesfaye, bluntly denied a suggestion put to him by Mr. Gallagher that Mr. Gallagher had asked him about a membership card in November 1999. I note that Mr. Gallagher led no evidence on this point before closing his case. I accept Mr. Tesfaye’s testimony that he had no discussions whatsoever with Mr. Gallagher related to the topic of trade unionization, nor any knowledge of an organizing drive in the workplace.
14The uncontradicted evidence of Mr. Bogardo was that, in separate interviews on March 27, 2000, he terminated both Mr. Gallagher and Mr. Ryszard Szczoczarz, a co-worker of Mr. Gallagher, who also worked at the restaurant bar. They were terminated for the same reasons: poor bar sales due to indifference to customers and inattention to the appearance of the bar. That indifference and inattention had been witnessed on two occasions by the restaurant’s majority stockholder, who asked Mr. Bogardo what he thought could be done about it. Mr. Bogardo replied he would ask the two employees to leave on terms.
15Mr. Szczoczarz accepted the decision and the terms of his separation. Mr. Gallagher, on the other hand, said, "I know why I am being fired", and abruptly left the restaurant. Mr. Bogardo stated that, to the best of his knowledge, he first learned of Mr. Gallagher’s allegations against the company when the application was filed. He was not sure what Mr. Gallagher meant by “I know why I am being fired”, but thought he was implying some sort of vendetta.
Decision
16The uncontradicted evidence established that the decision to terminate Mr. Gallagher was taken by Mr. Bogardo, in consultation with the company's majority shareholder. They were the only two individuals involved in that decision, and their reasons were related solely to the poor performance of the bar. I am satisfied that neither individual had any knowledge, directly or indirectly, of union activity at the restaurant on the part of Mr. Gallagher or any other employee. The company's offer to Mr. Gallagher of two weeks' pay and a reference letter, and its candour in admitting that it did not have just cause to terminate Mr. Gallagher without notice, are consistent with the behaviour of an organization that had no unlawful axe to grind with its employee. In short, the company successfully presented a prima facie defense, thereby discharging the onus imposed on it by section 96(5) of the Act.
17The applicant failed to rebut the employer's defense. The evidence disclosed that, to the extent there was an organizing campaign in Mr. Gallagher's workplace, it was being carried out in a highly secretive and discrete manner. There was no sign of union literature, of trade union representatives or of union membership cards. And there was no indication to management that Mr. Gallagher was a key member of, or, for that matter, in any way connected to this unusually low-key campaign.
18The fact that Mr. Gallagher was never disciplined in any formal manner prior to his termination is not pertinent in this case, although the lack of progressive discipline can, in some circumstances, cast doubt on the employer's purported reasons for terminating an employee. However, in the instant case, the evidence showed that the bar sales for Mr. Gallagher's area were poor, and that the company's majority shareholder had formed an unfavourable opinion of the way in which Mr. Gallagher and his co-worker went about their duties.
19The manner in which a termination is carried out is another factor that can shed light on the employer's true purpose for discharge. In the instant case, it is regrettable that the applicant was informed of his termination in clear view of his co-workers. Had that fact been buttressed with other facts tending to show that the company was attempting to send a chilling message to the applicant's co-workers, the Board may have had more difficulty in arriving at the decision it has in this matter. The evidence, however, was that no one overheard the conversation between Mr. Gallagher and Mr. Bogardo. The evidence further suggested that the message conveyed by Mr. Bogardo was given in an even-handed, calm, even empathetic manner. Mr. Bogardo offered terms of separation, and they were not unreasonable terms. The company made no attempt to claim just cause or claim any other reason to exempt itself from the termination obligations imposed upon it by statute. These factors are not consistent with the inference of a publicly staged termination aimed at persuading employees to reject representation by a trade union.
20For all of the above-noted reasons, the application is dismissed.
“Patrick Kelly”
for the Board