Employer took co-worker’s suspicions of unsanitary conduct too seriously without a comprehensive investigation
An arbitrator has reinstated a British Columbia employee who was fired for urinating in a food preparation area after the employer failed to prove the employee actually did it.
The 62-year-old employee was hired by a supermarket in September 2012 to be a barbecue chef in the supermarket’s restaurant area. He cut and marinated meat for barbecuing as well as barbecuing meat himself for customers. Part of his work area included a cooler — a small 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 meat for barbecuing. 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 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 incident to his supervisor. The supervisor told him they would talk further about it when fewer people were around. The co-worker also told the assistant manager of 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 discomfort 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 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. 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 suspiciously 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 preparation area had strict guidelines on sanitation and there were public washrooms in the store. On Sept. 27, the supermarket terminated the chef’s employment.
Two opposing versions
The 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. There was nothing indicating either version of the incident was more probable than the other. The co-worker had observed the chef behaving in a way consistent with just finishing urination, 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 therefore not sufficient evidence to prove just cause for dismissal, said the arbitrator.
The arbitrator found there was a lot of opportunity 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 supervisor 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, the arbitrator found the chef wasn’t given an opportunity to properly refute 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 between the chef and his co-worker.
The arbitrator 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 warrant terminating his employment.
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