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
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
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.
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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