The grievor was terminating for urinating in a drain. He worked in a bakery, but the location was not in a food-preparation area. The arbitrator dismissed the grievor's medical justification and upheld the termination, despite the grievor's long service.
A bakery worker in a retail food store was fired after he was discovered urinating into the floor drain in a janitorial storage room.
J.D. (John Doe) was hired as a bakery worker in 1988. He had about 23 years of service with the employer when he was fired on Sept. 20, 2011. His record included a handful of verbal warnings over the course of his career but no disciplinary sanctions.
One day in July 2011, a worker on an errand went into the store’s janitorial room. She discovered J.D. urinating into the floor drain. J.D. told her “the boys couldn’t wait.”
The worker notified the employer about the incident.
J.D. was called in for a meeting with the store manager on August 28. A union representative also attended.
J.D. initially denied that he had urinated into the floor drain. However, J.D. changed his story when he was told there was video evidence. J.D. then also admitted that he had relieved himself in the janitorial room three or four times over the previous few months.
The manager asked J.D. if there was a medical explanation for his behaviour. J.D. apologized for the incident and speculated that a recent hernia operation may have been a factor.
J.D. was asked if he was in need of some kind of workplace accommodation.
Doctor’s note
A few days later, J.D. presented his manager with a doctor’s note. The note said that J.D. required regular bathroom breaks for medical reasons. No specifics were supplied.
Another meeting with J.D. and his union representative was held on Sept. 20, 2011. J.D. was told that by urinating in a place that was open to other employees, and possibly even the public, he had committed a serious breach of trust. He had flouted safety and hygiene requirements and he had jeopardized the company’s reputation. J.D. was fired.
The union grieved.
The union said that J.D. did what he did out of necessity. The janitor’s room was — by design — removed from the food preparation area and the drain was regularly used to dispose of toxic materials and other waste. J.D. voluntarily admitted to the previous incidents. He had apologized. J.D. had sought medical treatment and was taking the steps necessary to ensure that there would be no repeat performance. J.D. had a relatively good record and 23 years of service with the employer. Termination was excessive in the circumstances, the union said.
The employer repeated its charges to the Arbitrator.
The medical evidence offered by J.D. was thin, at best, the employer said. J.D.’s doctor’s note was not illuminating. The post-termination assessment that J.D. provided from a urologist gave more information. Still, J.D. was unable to make a compelling case explaining why he couldn’t make it to the bathroom, which was only 60 seconds further along.
The employer also questioned whether or not J.D. had been entirely candid. First, he denied the incident and only owned up to it when he was presented with the possibility of video evidence. His claims concerning the severity of the pain and urgency that attended his alleged condition also seemed questionable.
Surely, the employer said, J.D. would have consulted a doctor after the first or even the second occurrence. However, as he testified, J.D. did not seek medical attention until after he had been discovered and until after he had apparently felt compelled to urinate in the janitor’s room three or four times.
Serious misconduct
J.D. had committed serious misconduct, the employer said. His actions constituted a fundamental breach of the rights of the employer, his fellow employees and store customers. Termination was warranted.
The Arbitrator agreed.
“In my view, this form of misconduct is so serious in an employment setting where proper hygiene is of such significance, that it undermines the viability of the employment relationship.”
The issue in this case was not uncommon in the food industry, the Arbitrator said. “The arbitral response to such misconduct has been consistent and in my view, entirely appropriate. In the food industry it is viewed as misconduct of a particularly serious nature.”
Indeed, the Arbitrator said, the offence was so serious that discharge was generally viewed as appropriate even for a first offence.
While J.D.’s length of service spared him dismissal on the spot, by itself his length of service was not enough to mitigate the offence.
The Arbitrator said that the case law demonstrated that successful mitigating factors would need to supply a “satisfactory explanation” for such conduct based on very compelling grounds.
That wasn’t the case here.
Whatever discomfort J.D. may or may not have experienced, he was not able to supply objective medical evidence to explain his behaviour.
“In my view, the grievor’s choice was deliberate and reckless. He selfishly ignored the interests of his employer and his co-workers. He does not seem to understand the gravity of his actions. Other than saying he was sorry, he has not expressed remorse or acknowledged that his choice, as [he] has termed it, may have been the wrong choice. His disregard of the rights of his employer and his co-workers to maintain the most basic standards of decency and respectful conduct in the workplace is disturbing.”
The grievance was dismissed.
