If ever oh ever a whiz there was! 


March 2013

Employment and Labour Bulletin

We are told that cleanliness is next to godliness. Nowhere is that adage taken more seriously than in the food processing and retailing industries. Just consider any number of food processing or retailing companies that have had their reputations tainted by reports of E. coli contamination or rodent infestation. The following union grievance arbitration decision, anonymously styled as X vs. Y for what will be seen to be obvious reasons, highlights the seriousness with which this issue is addressed.

Needless to say, a female employee at a food retailer was startled when she entered a small janitorial room adjacent to the bakery at the back of the store, only to discover a male co-worker standing in front of an open floor sink urinating. The sink was normally used to drain cleaning compounds. "You taking a leak?" she asked, to which her co-worker replied "the boys are bad". After deliberating for several weeks, the employee decided to bring the matter of the "bad boy's" behaviour to her employer's attention.

At the initial interview with management the grievor, who worked in the bakery department, at first denied that he had urinated into the floor sink in the janitor's room. When told there was video footage of what occurred on that day, the grievor admitted his conduct. When asked he went on to say that he had done the same thing three or four times in the preceding several months. In answer to the question as to whether he had a medical problem, the grievor stated that he had hernia issues. He was then suspended and given the opportunity to provide whatever medical evidence he could that would mitigate his conduct.

A few days later, the grievor produced a note from his doctor that read "for medical reasons requires regular bathroom breaks". The employer decided that the note did not provide any justification for the grievor's serious breach of rules of hygiene. Notwithstanding the grievor's 23 years' of service and relatively clean disciplinary record, it terminated his employment for cause.

At the arbitration hearing, the union called evidence on behalf of the grievor to provide a medical justification as to why on certain occasions he would not be able to make it to the washroom when nature called. For his part, the grievor stated that on each instance in which he had urinated in the janitor's sink, he had done so because he had an urgent need to urinate and was under severe pain, such that he could not make it to the employee washrooms 60 seconds away. Under-cutting the grievor's credibility was the fact this sudden severe pain had never occurred away from the workplace, nor had he brought it to his doctor's attention prior to the date in question.

The arbitrator refused to accept that there was objective medical evidence to support the grievor's position. The arbitrator noted that "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". Notwithstanding the grievor's long service, the termination was upheld and the grievance dismissed.

This decision underscores how an employer's reputational risk can be an enormous factor in determining whether a discharge will be upheld in a unionized setting. In many other industries, an arbitrator might well have substituted a suspension for the dismissal given the employee's length of service.

Ultimately why did the arbitrator decide to uphold the grievor's dismissal? Because, because, because, because, because, because of the disgusting thing it was.

by David Elenbaas

a cautionary note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2013