Restaurant manager awarded six months' pay

B.C. restaurant had 'zero-tolerance policy' on drinking at work but it wasn't consistently applied
|employmentlawtoday.com

A restaurant manager in British Columbia was awarded six months’ notice after being dismissed without cause. John Coupe worked for Malone’s Restaurant and Eats Café in different capacities and locations from 1996 until he was fired on March 31, 2003.

Coupe was fired by Jamie Moberg, an area manager at Malone’s. Moberg was asked to fire Coupe by Rachel Trefiak, the manager of another location. Moberg didn’t witness any of Coupe’s conduct on which the restaurant was relying on in firing him. Rather, he was told by the Trefiak what to put on a form that was handed to Coupe at the meeting and what Moberg should tell him.

Five reasons for dismissal

The form given to Coupe listing five items as the reasons for his termination:

•promoting and supporting drinking on the job (re: staff members);

•drinking while on shift;

•does not follow protocol and is insubordinate regarding company policies;

•not an effective leader, nor is he a team player; and

•does not consistently perform his duties as a manager.

Moberg told Coupe he was being fired because:

•he had been drinking on the job — he referred to a drink he had after a meeting with Trefiak;

•he had allowed other staff to drink — this related to an incident where Trefiak noted that a busboy was drunk on Coupe’s shift; and

•he had refused to do the closing liquor inventory at the end of his shift.

Two or three weeks before being fired, Moberg had met with Coupe at Trefiak’s request. At the meeting, Moberg told Coupe that he had a new boss (Trefiak) and that he had to adhere to her rules and stipulations. He did not use the word warning and characterized the meeting as giving a “heads up to a buddy.”

The court’s decision

The B.C. Supreme Court looked at a number of factors in determining that Coupe had been wrongfully dismissed.

Was he adequately warned of his misconduct?

The restaurant argued Coupe was given adequate warning of his misconduct during a meeting with Moberg a couple of weeks before the termination.

But the court pointed out that all of Coupe’s alleged misconduct took place before the meeting with Moberg and was not repeated afterward.

“Therefore, whether or not (Coupe) was given an adequate warning is irrelevant,” the court said. “In any event, I find that an adequate warning was not provided. A warning must be clear and unequivocal; it must indicate to the employee that his job is at risk. The discussion between Mr. Moberg and (Coupe) did not have the tenor of a formal warning, nor did Mr. Moberg communicate to (Coupe) that his job was at risk.”

The policy prohibiting drinking by staff.

The main ground relied on by the restaurant to fire Coupe was his disregard for the company’s zero-tolerance policy prohibiting drinking by staff. It argued this was demonstrated by the incident of the drunk busboy.

But the court rejected that argument. There was no evidence that the drunkenness of the busboy could be attributed in any way to Coupe.

“There is no evidence as to when he became drunk or the circumstances surrounding the event,” the court said. “The only evidence is that Ms. Trefiak told (Coupe) that a busboy was drunk on his shift.”

Regarding drinking by Coupe, there was no evidence that he drank on the job. The only evidence of such a drink was the one Trefiak bought him after they had a meeting.

“The zero-tolerance, no-drinking policy was one in name only,” the court said. “The plaintiff did acknowledge in his examination for discovery that when (the new owner) took over the company, he instituted a ‘strict no-drinking policy.’ However, the evidence is clear that that policy was not strictly or consistently enforced. One need look no further for this than the drink which Ms. Trefiak bought (Coupe) and other staff members referred to above.”

And there were exceptions to the policy. Employees could be given a drink as a reward for good service. Staff could come to a manager and ask for permission to have a drink with patrons. Employees could buy themselves drinks with managerial approval. Staff could drink after they punched out. Managers could buy drinks for staff.

“The zero-tolerance policy was not sufficiently clear or uniformly enforced to justify summary dismissal for an alleged breach,” the court said.

Taking inventory of liquor stock.

The court rejected this as a ground for dismissal and the company’s argument that it showed a lack of respect for company policies.

“This argument fails because (Coupe’s) uncontradicted evidence was that after this was discussed with Ms. Trefiak, he did do the liquor inventory up to the time he was terminated,” the court said.

The voiding of the transaction.

An incident was brought to Coupe’s attention and was also raised later at a managers’ meeting attended by Coupe as an example of what not to do. Coupe had voided a tab for a regular customer who had mistakenly left without paying, rather than follow company policy and charge it to the “dine-and-dash” fund. He did that because he was certain the customer would return to pay the bill.

But the court said there was no evidence of a similar incident having reoccurred after Coupe was warned about it.

“The (restaurant) seems to argue that it was entitled to dismiss (Coupe) not for the actual incident — (he) was not dismissed at the time of the incident or immediately afterwards — but rather because (Coupe) ‘did not treat those events as any indication that his superiors found his job performance deficient.’ That argument does not bear scrutiny because (he) did not repeat the impugned incident,” the court said.

Calculating reasonable notice

Coupe was hired as a busboy in 1996. He was promoted to a bartender and then to the position of shift manager. At the time of his dismissal, he had been working for two years as a manager and was 26.

The court settled on a reasonable notice period of six months.

It rejected his claim for

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damages for the manner in which the dismissal was handled.

“While the (employer) did not succeed in its allegation of cause, and by at least at the start of the trial, it should have been apparent to it that it would not succeed, I do not think that its conduct or the consequences to (Coupe) rise to the level to merit

Wallace

damages,” the court said. “Apart from the fact of being fired itself, there was nothing done to humiliate (him). Mr. Moberg acted appropriately at the meeting in which he terminated (Coupe’s) employment, and there is no evidence of (him) being embarrassed or humiliated.”

For more information see:

Coups v. Malone’s Restaurant Ltd.

, 2006 CarswellBC 233 (B.C. S.C.)

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