Canadian Employment Law Today - sample

6 | September 28, 2016 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends the cooler after a large shipment of food ar- rived at the supermarket, including meat for barbecuing. e 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. e co-worker believed he saw the chef making movements consistent with urinating into the sink. e co-worker claimed he greeted the chef, who then picked up the spray and sprayed the sink in "panicky, brisk movements." e co- worker indicated he would help load product into the cooler, but the chef said he would do it himself. e co-worker thought it 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. e co-worker noticed the sink into which the chef was spraying was empty. About 30 to 60 minutes later, the co- worker reported the incident to his super- visor. e supervisor told him they would talk further about it when fewer people were around. e co-worker also told the assistant manager of the restaurant area the next day. ree days later, the assistant store man- ager met with the co-worker and the super- visor. e co-worker was asked to prepare a written statement, but he refused as he claimed he felt "so much discomfort to think about it." e 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 super- visor met again with the co-worker, where he confirmed his account of the incident. e chef was then called to a meeting with the manager and supervisor, where he denied the allegation after the manager told him two employees had seen him urinating in the sink — though this wasn't true as only the one co-worker had reported anything. 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. ey couldn't think of any other reason why the chef would be standing on the platform in front of the sink. ey also felt the chef had acted suspiciously when he quickly sprayed the sink and told his co-worker he didn't need his help moving product into the cooler. ey took this misconduct seriously, as the food preparation area had strict guidelines on sanitation and there were public wash- rooms in the store. On Sept. 27, the super- market terminated the chef 's employment. Two opposing versions e arbitrator 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. ere was nothing indicating either version of the inci- dent was more probable than the other. e co-worker had observed the chef behaving in a way consistent with just finishing urina- tion, but didn't actually see any urine. As a result, even if the co-worker's story was to be believed over the chef 's, there was no actual report of urination in the sink — and there- fore not sufficient evidence to prove just cause for dismissal, said the arbitrator. e arbitrator found there was a lot of op- portunity for the co-worker's story to evolve, since it took several days for the employer to take action due to off days of the supervi- sor 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. e 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, the arbitrator found the chef wasn't given an opportunity to properly re- fute the allegation 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 be- tween the chef and his co-worker. e arbitrator determined the chef 's de- nial was more believable than the co-work- er's allegation and the supermarket failed to properly investigate the incident. e super- market was ordered to reinstate the chef as it didn't have sufficient evidence to warrant terminating his employment. For more information see: • X and Y (15 0589), Re, 2016 CarswellBC 2309 (B.C. Arb.). Co-worker's version of incident evolved over time « from HEARSAY on page 1 out in Lumber & Sawmill Workers' Union, Lo- cal 2537 v. KVP Co., it is necessary to balance the personal freedoms of employees against the employer's legitimate business interests. Employers have usually not had trouble justifying dress codes designed to promote their business image, and that only affect an employee while on duty, such as specifying the colour or type of clothing to be worn at work. Also, policies based on safety or hy- giene — such as no dangling jewelry near dangerous equipment — are usually fine. However, it is becoming increasingly dif- ficult for employers to defend policies that prevent employees from displaying tattoos and piercings as they become increasingly prevalent in our society. In some arbitra- tion cases, public opinion surveys have been presented on whether customers and other third parties would be offended by visible tattoos or piercings. In most cases, the em- ployer has been unable to prove that a rule against tattoos or piercings was necessary to protect its business interests. Tattoos and piercings can reflect an im- portant aspect of personal identity and a re- quirement to cover tattoos or remove pierc- ings can be challenging for some people. Given these factors, an employer must be able to establish that there are legitimate and cogent business reasons that objectively demonstrate that the display of tattoos and piercings would adversely affect its business. e mere risk of losing customers or isolated complaints, would not be sufficient. Arbitrators have repeatedly overturned dress codes prohibiting visible tattoos and piercings where the employer was unable to provide objective evidence supporting the policy. For a good review of the jurispru- dence, see Westfair Foods Ltd. v. U.F.C.W., Local 401, and Ottawa Hospital. In the latter, the arbitrator likened a policy prohibiting tattoos and piercings to policies in the early 1970s that prevented male employees from having long sideburns — policies which the arbitrator noted now seem "quaint." Ultimately, the evidence needed to es- tablish that a dress code is reasonable will depend on the nature of the business and the jobs performed by its employees. Dress codes should be as narrow as possible, clear- ly worded, and consistently enforced. For more information see: • Lumber & Sawmill Workers' Union, Local 2537 v. KVP Co., 1965 CarswellOnt 618 (Ont. Arb.). • Westfair Foods Ltd. v. U.F.C.W., Local 401, 2005 CarswellAlta 1097 (Alta. Arb.). • Ottawa Hospital and CUPE, Local 4000 (Dress Code Policy), Re, 2013 CarswellOnt 130 (Ont. Arb.). Colin Gibson is a partner with Harris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@ harrisco.com. « from ASK AN EXPERT on page 2 Good reason needed for code

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