The grievor was terminated for theft, based largely on the testimony of a co-worker. The arbitrator found that the employer's evidence was not clear enough to support the penalty. The witness was weak and the loss of product could not be documented.
A Cook’s Helper was fired for theft after food was reported missing from a commercial kitchen. The union grieved, arguing that the termination was without just cause.
M.K. worked as a Cook’s Helper at a geriatric care centre. He was hired in October 2005. Prior discipline did not factor into his termination in October 2010.
On Sept. 27, 2010, the manager of food services at the geriatric care centre where M.K. worked reported that the kitchen was short on salmon for that day.
The director of food services examined video surveillance tape of the refrigerator area. The tape showed M.K. removing food items from various refrigerators between about 9:30 a.m. and noon. M.K. was seen removing four boxes of salmon from the freezer and then returning the fish to a refrigerator.
On Sept. 27, the Chief Cook asked A.C. — the on-call food service aid — if he had any information about salmon that was missing.
A.C. offered no information. However, later a union representative approached A.C. A.C. then made a statement alleging that on the previous Sunday, before M.K. left work, he alerted A.C. that there was some cooked fish in the steamer. A.C. said that M.K. invited him to eat it if he liked it or else to throw it out before he left — otherwise, M.K. reportedly said, they would get in trouble.
A.C. said he was initially reluctant to tell his story because he did, in fact, eat some of the fish that day and he was afraid that he would be fired.
Unauthorized use
A.C. also offered some of the cooked fish to another member of the kitchen staff, who refused.
M.K. was fired. The termination letter said that M.K. “willfully prepared and cooked food which was not scheduled, constituting unauthorized use of [employer] property.”
M.K. had a different story. He said he pulled food that day according to the requirements of the production sheet. He took boxes of salmon from the freezer, removed the pieces from the boxes and then placed the salmon pieces on trays and returned them to the thawing fridge. All of the boxes were not completely full. As well, M.K. said, some of the boxes contained pieces of salmon that were frozen together in a lump, which made if difficult to determine how many pieces were in a box. M.K. denied cooking any salmon that day. However, he did acknowledge cooking five pieces of whitefish in the presence of about 15 other staff and managers.
The union said that the employer had not met the onus on it to provide sufficient evidence to support its allegations against M.K. and establish cause for termination.
The Arbitrator agreed.
The evidence that salmon was even missing was equivocal because the employer had not established how many pieces of salmon were in a box.
Video evidence
The video evidence did show M.K. removing boxes of salmon from the freezer. However, the work sheets also showed that he was instructed to remove 200 pieces of salmon that day for defrosting.
The evidence also established that there were about 35 employees in the kitchen that day — including three supervisors. No one saw M.K. cooking between 10 and 25 pieces of salmon as was alleged.
The Arbitrator also expressed some skepticism about A.C.’s story. It would be unusual, the Arbitrator said, for M.K. to simply leave work and then rely on A.C. to dispose of the evidence as alleged.
Moreover, the other kitchen staffer who initially offered a statement saying that he saw M.K. cook salmon that day changed his mind. He testified that he did not see M.K. cooking salmon that day.
“In disciplinary proceedings such as this… the onus is on the Employer to establish the facts in support of the discharge, and having reviewed all the evidence I cannot conclude that it has been established by clear and cogent evidence that the grievor stole, cooked or distributed food,” the Arbitrator said.
The grievance was allowed.
Mark Rogers is a freelance writer who specializes in labour relations and occupational health and safety.
