Worker said he had a condition that led to him urinating in employer's garbage area
This instalment of You Make the Call features a worker who urinated on the floor at his workplace.
The 52-year-old employee was a sanitation worker at a food production facility, hired in August 2006. The facility was a bakeshop and the employee was responsible for cleaning and de-greasing production equipment, cleaning the floor and machinery, and emptying garbage in the garbage disposal area. He didn’t handle any food, but his duties required him to enter food production areas for cleaning and taking out the garbage.
Cleanliness was of utmost importance to the employer due to the nature of the business, and the company’s food safety and quality policy was posted outside the staff lunchroom and punch clocks. Employees were also trained on the policy, which required the sanitization of hands before going into the food production areas. The employee was required to wear a hairnet like other employees who entered these areas.
On April 28, 2014, the employee was performing his regular duties cleaning and taking the garbage to the waste disposal area, which was a partially open area backing onto the yard where trucks from customers going to the shipping and receiving area travel and park. The area contained a recycling bin and a garbage compactor with a waist-high wall at the outside end of the platform. The nearest men’s washroom was between two and five minutes’ walk from the waste disposal area, according to the employee.
One of the other sanitation workers approached a second worker and told the second worker that the employee in question was “outside going pee pee.” They went to the waste disposal area and saw what they believed was a puddle of urine with a strong odour near the garbage compactor. Further examination led them to think there was flour or sugar on top of it.
The workers reported it to the assistant plant manager.
The following day, the employee met with management and the other sanitation workers and was told of the report. The employee denied the allegation and agreed it would be “very wrong” to urinate in the waste disposal area. He also denied putting any material such as flour or sugar over the spot to try to disguise the odour.
The waste disposal area had a motion-activated surveillance camera, so management reviewed the footage. It showed the employee hauling garbage bins and then walking to the far end of the area’s passageway between the compactor and recycling bin. He removed a glove and stood there for 20 seconds. After that, he put his glove back on and his work apron could be seen dropping into place. A couple of minutes later — after which the employee said he went to the washroom to finish and wash his hands — he returned, removed something from the garbage bin he had, and shook it.
Management concluded the employee had lied about the allegations and he did in fact urinate in the waste disposal area. It considered this a serious offence, given the importance it placed on hygiene at the facility. The employee had a November 2013 written warning for poor behaviour and performance and a January 2014 “final warning” for unacceptable conduct,” so the company decided to dismiss him effective May 2, 2014.
The employee acknowledged his misconduct and wrote a letter to the company apologizing. He explained he initially denied it because he was scared but understood he must be truthful and he wouldn’t do it again. He also explained he was diabetic and he needed to urinate frequently and “fast.” He had a letter from his doctor saying he had a medical condition that increased his frequency of urination, but he hadn’t raised any medical issue at the meetings to discuss his misconduct.
You Make the Call
Did the employee deserve another chance?
Did the employee’s actions warrant dismissal?
If you said dismissal was warranted, you’re correct. The arbitrator found there was no doubt the employee urinated in the waste disposal room, which was serious misconduct in light of the employer’s hygiene policies and the nature of the business.
The arbitrator also found the employee had a condition that led to his need to urinate frequently and the employee had a doctor’s note stating that fact. However, there was no medical evidence that indicated the employee had a condition that impeded his ability to control his urination to the point of incontinence, said the arbitrator.
The evidence indicated the nearest men’s washroom was a few minutes away from the area where the employee was working at the time he had to go. On the video, he was working at a normal pace, not showing any discomfort. IThe video showed him returning from what he said was the bathroom only a couple of minutes later. The arbitrator found it unlikely the employee couldn’t have gotten to the bathroom in that little time once he felt he had to go.
In addition, the arbitrator noted the waste disposal area was open to the outdoors on one side and the employee could have been observed by someone — including customers or a health inspector. If this had happened, there would have been serious consequences for the employer.The employee’s behaviour and his failure to be truthful about it when initially confronted outweighed his remorse and apology that followed his dismissal, said the arbitrator in upholding the termination. See X and Y (K. (P.)), Re, 2014 CarswellOnt 18431 (Ont. Arb.).