Canadian Labour Reporter - sample

room where meat products were kept refrigerated. On one side of the cooler was a large double-basin stainless steel sink with a tap in the middle and a sprayer. The chef used this sink — which was in front of the cooler door — to thaw meat products and marinate pork, ribs, chicken and duck in bowls. On Sept. 16, 2015, a co-worker came over to the cooler after a large shipment of food arrived at the supermarket, including barbecue meats. The co-worker moved the barbecue materials in front of the cooler doorway and opened the door. He saw the chef standing on a platform at the sink with his back to him and his hands in front of his trousers. The co- worker believed he saw the chef making movements consistent with urinating into the sink. The co-worker claimed he greeted the chef, who then picked up the spray and sprayed the sink in "panicky, brisk movements." The co-worker indicated he would help load product into the cooler, but the chef said he would do it himself. The co-worker thought it additionally strange since he didn't think the chef had refused such help before. Another employee approached and the chef ushered both of them out of the cooler. The co-worker noticed the sink into which the chef was spraying was empty. About 30 to 60 minutes later, the co-worker reported the inci- dent to his supervisor. The super- visor told him they would talk fur- ther about it when fewer people were around. The co-worker also notified the assistant manager to the restaurant area the next day. Three days later, the assistant store manager met with the co- worker and the supervisor. The co-worker was asked to prepare a written statement, but he refused as he claimed he felt "so much dis- comfort to think about it." The supervisor wrote a draft and the co-worker read it over and added that he had asked the other employee to come over to help with the delivery. A week later, the store manager and supervisor met again with the co-worker, where he confirmed his account of the incident. The chef was then called to a meeting with the manager and supervisor, where he denied urinating in the sink after the manager told him two employees had seen him uri- nating in the sink — though this wasn't true as only one co-worker had looked into the cooler. It was the first the chef had heard of the incident. Following the meeting with the chef, the manager and supervisor determined the chef must have been urinating in the sink. They couldn't think of any other reason why the chef would be standing on the platform in front of the sink. They also felt the chef had acted suspicious when he quickly sprayed the sink and told his co- worker he didn't need his help moving product into the cooler. They took this misconduct seriously, as the food prepara- tion area had strict guidelines on sanitation and there were public washrooms in the store. On Sept. 27, the supermarket terminated the chef 's employ- ment. Two opposing versions Arbitrator Glenn Sigurdson noted there was a lack of physical evidence of the chef 's misconduct and it essentially boiled down to the claims of the chef and his co- worker. There was nothing indi- cating either version of the inci- dent was more probable than the other story. The co-worker had observed the chef behaving in a way consis- tent with just finishing urination, but didn't actually see any urine. As a result, even if the co-work- er's story was to be believed over the chef 's, there was no actual re- port of urination in the sink — and therefore not sufficient evidence to prove just cause for dismissal, said Sigurdson. Sigurdson found there was a lot of opportunity for the co-worker's story to evolve, since it took sev- eral days for the employer to take action due to off days of the super- visor and manager. Each time the co-worker's story was reviewed with him, he amended it a little bit, resulting in some "elasticity" in his account. The co-worker's account also didn't initially include the fact that the chef was wearing a long lab- type of coat with buttons, which would have made it more difficult to urinate into the sink. In addition, Sigurdson found the chef wasn't given an opportu- nity to properly refute the allega- tion against him. Even though the investigation took more than a week, the chef wasn't informed of anything until the day before he was terminated. It was also revealed during the arbitration hearing that there had been past tensions between the chef and his co-worker. Sigurdson determined the chef 's denial was more believable than the co-worker's allegation and the supermarket failed to properly investigate the incident. The supermarket was ordered to reinstate the chef as it didn't have sufficient evidence to war- rant terminating the chef 's em- ployment. For more information see: • X and Y (15 0589), Re, 2016 Car- swellBC 2309 (B.C. Arb.). 7 Canadian HR Reporter, a Thomson Reuters business 2016 CANADIAN LABOUR REPORTER NEWS < Hearsay pg. 1 Arbitrator noted lack of physical evidence of misconduct Photo: Olinchuk (Shutterstock) Even though the investigation took more than a week, the chef wasn't informed of anything until the day before he was terminated.

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