Video footage doesn’t prove vandalism

Time clock damaged at Safeway grocery store in Calgary

An Alberta arbitrator has reinstated a worker who was dismissed after the employer viewed video footage of him near a time clock that had been damaged.

Goran Miljevic, 50, was a meat cutter at a Safeway grocery store in Calgary. The store used a time recording system on which employees punched in and out of work, recording their hours on a weekly time card. Employees inserted their cards into a slot on the time clock to record their in and out times.

In early September 2012, the time clock was damaged by an unknown person. The store was able to get it running again without much trouble. Later that month, the clock once again wasn’t working when the assistant manager tried to punch in. He noticed a white, sticky residue on the top of the time clock’s slot, so he got the key and opened the box of the clock. Inside, the same substance was on the inside of the bottom of the clock cover and in the mechanism.

Cleaning didn’t get the clock working, so a service call was made. It turned out the time clock was irreparably damaged and a new one had to be ordered, which took 80 days to arrive. In the meantime, employees had to manually fill in their time cards.

The new clock arrived on Dec. 18 and was installed. It was tested and everything was working fine. However, about six hours later, towards the end of the day, the assistant manager tried to punch out but found the clock “gummed” up. More of the sticky white residue was found in the clock. However, Safeway was able to get the clock running again.

Safeway decided to install a motion-activated hidden surveillance camera at the time clock.

On Dec. 30, 2012, the assistant manager punched out at 5:10 p.m. and went home. At 6 p.m., another employee went to punch out and the time clock didn’t apply the time stamp. Her card also came out damp on the bottom and she noticed a white powder on one side of the slot. She also saw a small white Styrofoam cup sitting on a shelf across from the time clock that had a white powder line inside, like coffee creamer. Another worker found the time clock to be dripping “white opaque liquid” from the bottom and also noticed the cup with white powder inside.

Safeway reviewed the time cards for the day and Miljevic’s card showed he punched out at 5:48 p.m., though he had scratched it out and manually filled in a different time. Another employee’s card had been punched at the time on the video footage.

The surveillance footage was reviewed and Miljevic was seen standing at the time clock. He removed two time cards and punched one. He then obtained a Styrofoam cup from the employee room and set it on a counter opposite the time clock. He came back, took the cup and went to the time clock. He left again, then returned and placed the cup on the shelf. However, while he was at the time clock, his back was to the camera so it wasn’t clear what he was doing.

Safeway interviewed Miljevic and told him the surveillance footage clearly showed him pouring liquid into the time clock. Miljevic said he had accidentally spilled the cup while he looked at his watch and he didn’t report it because he didn’t think the clock was damaged and he was worried they would think he was responsible for the previous vandalism. Safeway didn’t show him the video.

Safeway suspended Miljevic and, on Jan. 11, 2013, terminated his employment for intentionally vandalizing company property.

In a grievance hearing, Miljevic explained he had a cup of water and was looking to make tea for the trip home. He said he went back to the time clock because he thought he had punched the wrong card and wanted to check. He then went to the washroom, poured the cup into the sink and returned with a paper towel to wipe the time clock.

The arbitrator found Miljevic spilled water with coffee creamer on the time clock on the day in question, which damaged the clock. Based on the next time card punched, the clock was nonfunctional for about 36 minutes after the spill.

Though Safeway felt Miljevic’s story was implausible — punching the wrong card, looking to make tea instead of going home, not reporting the accidental spill — the arbitrator found the employer didn’t have “clear, convincing and cogent evidence” to disprove it. All the video showed was Miljevic at the time clock with a cup and his back to the camera. It supported Miljevic’s story as much as Safeway’s contention that he intentionally damaged the time clock, said the arbitrator.

The arbitrator also noted that Miljevic had worked for Safeway for 24 years without discipline.

“(Miljevic’s) claim of accident is thus consistent with the video evidence, the time of the incident, the small amount of water spilled and the modest amount of damage caused,” said the arbitrator.

Safeway was ordered to reinstate Miljevic with compensation for lost pay and a five-day suspension for failing to report the accident and damage to the time clock. See UFCW, Local 401 v. Canada Safeway Ltd., 2014 CarswellAlta 246 (Alta. Arb.).

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