Canadian Employment Law Today

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GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations @thomsonreuters.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: Karen Lorimer Publisher: John Hobel (on leave) Acting Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2016 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 Sanitation worker's puddle of trouble THIS INSTALMENT of You Make the Call features a worker who urinated on the fl oor at his workplace. e 52-year-old employee was a sanita- tion worker at a food production facility, hired in August 2006. e facility was a bake- shop and the employee was responsible for cleaning and de-greasing production equip- ment, cleaning the fl oor and machinery, and emptying garbage in the garbage disposal area. He didn't handle any food, but his du- ties required him to enter food production areas for cleaning and taking out the garbage. Cleanliness was of utmost importance to the employer due to the nature of the busi- ness, and the company's food safety and quality policy was posted outside the staff lunchroom and punch clocks. Employees were also trained on the policy, which re- quired the sanitization of hands before going into the food production areas. e employ- ee was required to wear a hairnet like other employees who entered these areas. On April 28, 2014, the employee was per- forming his regular duties cleaning and tak- ing the garbage to the waste disposal area, which was a partially open area backing onto the yard where trucks from customers going to the shipping and receiving area travel and park. e area contained a recycling bin and a garbage compactor with a waist-high wall at the outside end of the platform. e near- est men's washroom was between two and fi ve minutes' walk from the waste disposal area, according to the employee. One of the other sanitation workers ap- proached a second worker and told the sec- ond worker that the employee in question was "outside going pee pee." ey went to the waste disposal area and saw what they believed was a puddle of urine with a strong odour near the garbage compactor. Further examination led them to think there was fl our or sugar on top of it. e workers reported it to the assistant plant manager. e following day, the employee met with management and the other sanitation work- ers and was told of the report. e employee denied the allegation and agreed it would be "very wrong" to urinate in the waste disposal area. He also denied putting any material such as fl our or sugar over the spot to try to disguise the odour. e waste disposal area had a motion- activated surveillance camera, so manage- ment reviewed the footage. It showed the employee hauling garbage bins and then walking to the far end of the area's passage- way between the compactor and recycling bin. He removed a glove and stood there for 20 seconds. After that, he put his glove back on and his work apron could be seen drop- ping into place. A couple of minutes later — after which the employee said he went to the washroom to fi nish and wash his hands — he returned, removed something from the gar- bage bin he had, and shook it. Management concluded the employee had lied about the allegations and he did in fact urinate in the waste disposal area. It considered this a serious off ence, given the importance it placed on hygiene at the fa- cility. e employee had a November 2013 written warning for poor behaviour and per- formance and a January 2014 "fi nal warning" for unacceptable conduct," so the company decided to dismiss him eff ective May 2, 2014. e employee acknowledged his mis- conduct and wrote a letter to the company apologizing. He explained he initially denied it because he was scared but understood he must be truthful and he wouldn't do it again. He also explained he was diabetic and he needed to urinate frequently and "fast." He had a letter from his doctor saying he had a medical condition that increased his fre- quency of urination, but he hadn't raised any medical issue at the meetings to discuss his misconduct. YOU MAKE THE CALL Did the employee deserve another chance? OR Did the employee's actions warrant dismissal? IF YOU SAID dismissal was warranted, you're correct. e arbitrator found there was no doubt the employee urinated in the waste disposal room, which was seri- ous misconduct in light of the employer's hygiene policies and the nature of the busi- ness. e arbitrator also found the employee had a condition that led to his need to uri- nate frequently and the employee had a doc- tor's note stating that fact. However, there was no medical evidence that indicated the employee had a condition that impeded his ability to control his urination to the point of incontinence, said the arbitrator. e evidence indicated the nearest men's washroom was a few minutes away from the area where the employee was working at the time he had to go. On the video, he was working at a normal pace, not showing any discomfort. I e video showed him return- ing from what he said was the bathroom only a couple of minutes later. e arbitra- tor found it unlikely the employee couldn't have gotten to the bathroom in that little time once he felt he had to go. In addition, the arbitrator noted the waste disposal area was open to the out- doors on one side and the employee could have been observed by someone — includ- ing customers or a health inspector. If this had happened, there would have been seri- ous consequences for the employer. e employee's behaviour and his failure to be truthful about it when initially confronted outweighed his remorse and apology that fol- lowed his dismissal, said the arbitrator in up- holding the termination. See X and Y (K. (P.)), Re, 2014 CarswellOnt 18431 (Ont. Arb.).

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