By Andy Pushalik
In what can only be described as a victory for common sense, an arbitrator recently upheld the discharge of a 27-year employee who was found responsible for spiking the office water cooler with chlorine bleach.
On Sept. 12, 2011, an employee reported to his supervisor that the water from the office water cooler had a “strong chlorine smell” and a “very hard taste.” In reviewing the surveillance video on the day in question, the grievor is seen exiting his office with an empty water cooler jug, entering the chemical storage room and then leaving the chemical storage room and walking back to his office with a chlorine bleach jug in his hand. As he re-enters his office, the grievor is seen placing his hand on the cap of the chlorine bleach jug. The grievor later exits his office with the chlorine bleach jug in his hand. He ultimately returns to his office with a full jug of water for the cooler.
When initially confronted about the situation, the grievor denied that he had caused the contamination of the water cooler but volunteered no information about why he had obtained the bleach from the chemical storage room. However, in his subsequent meetings with investigators and through his testimony at the hearing, the grievor’s story evolved to the point where he alleged that he had poured the bleach into two cups — one to be used later in the day to clean some shelves in his office and the other to pour into a dumpster located outside his office in order to kill its odour.
At the hearing, the grievor’s supervisor rejected the grievor’s explanation noting that it made no sense for the grievor to clean the shelves since they were not dirty and they were being dismantled to be taken out of the building. He further testified that he never saw the grievor use a cup to pour chlorine breach into the dumpster.
In his decision, the arbitrator found that the grievor’s testimony lacked credibility. In the arbitrator’s view, “the grievor’s many actions, as witnessed on the video and as described in his testimony, when taken together simply defy logic and do not make sense.” As a result, the arbitrator ruled that it was more likely than not that he was the cause of the chlorine bleach contamination of the office drinking water cooler. With respect to penalty, the arbitrator held that “…the level of mistruths and evasiveness displayed by the employee, as well as his failure to take responsibility for his actions, irreparably harmed the employee-employer relationship.” There was therefore no basis for the arbitrator to interfere with the employer’s decision to dismiss the grievor for cause.
This case is a good reminder of the importance that credibility will play when an adjudicator is asked to determine which version of events is more likely to have occurred. In conducting investigations, employers should ensure that they take detailed statements from those involved so as to “nail down” the alleged offender’s story. Should the alleged offender later change his or her story, the employer will be in a good position to impeach the employee’s credibility.
Andy Pushalik is a partner in the employment and labour group of Dentons’ Toronto office. He can be reached at email@example.com or (416) 862-3468.