0856-99-ES Chef’s Catering Limited, Applicant v. Steve Stamatiou and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 71007532
BEFORE: Anthony Brown, Vice-Chair.
APPEARANCES: P. Siklis, J. Siklis and Noula Siklis for the applicant; Steve Stamatiou on his own behalf and Frank Camilleri for the Ministry of Labour.
DECISION OF THE BOARD; May 23, 2000
This is an application for review of an Order to Pay (No.49065) issued by an Employment Standards Officer pursuant to the Employment Standards Act (“the Act”).
The applicant (“Chef’s Catering” or “the company”) terminated the employment of the responding party, Steve Stamatiou, on September 18, 1998. Mr. Stamatiou sought termination pay in lieu of notice. The Employment Standards Officer ordered the applicant to pay the responding party the sum of $1,248.00, representing two weeks’ termination pay and 4% vacation pay thereon.
Mr. Stamatiou was employed as a chef by Chef’s Catering from January 23, 1997 to September 18, 1998. The applicant states that Mr. Stamatiou’s employment was terminated because he took food out of the kitchen work area (cafeteria premises) for personal use, contrary to company policy. It alleges that there were repeated infractions of this nature. It submits that this conduct was “wilful misconduct” under clause 57(10(c) of the Act.
A hearing was conducted on March 16, 2000.
The Facts
- Chef’s Catering is a company engaged in cafeteria management and corporate catering. On June 5, 1998, the company issued a notice to all employees. It stated as follows:
In the past month it has been brought to my attention that a number of our employees have been taking food home with them when they leave at night. This action is will no longer be tolerated by our administration.
At Chefs Catering it is our policy that you may help yourself to whatever you would like while at work, however it is not a standard policy to feed our employees at home.
We ask that if you wish to take anything home with you that you contact Harry Elieff @ 585-8885 or myself @ 591-1830. If we find that any employee has taken any item home without authorization your position with Chefs Catering will be terminated automatically and with no exceptions.
All managers are asked to strictly monitor all products and report on any person removing items without consent. If Harry or myself do speak with you personally do not allow anything to leave the cafeteria premises.
Lets all work together and try to solve this unfortunate problem before any unplesant situations arise.
Mr. Stamatiou admitted that he was aware of the notice.
Chef’s Catering installed a video camera in the kitchen at its Markham Road (Scarborough) location, and placed a notice in the kitchen advising employees of the video surveillance. Mr. Stamatiou admitted that he knew that a camera had been installed.
The applicant cited two specific incidents in which Mr. Stamatiou contravened the rule stated in the above-referenced notice. It produced a video tape of activities in the kitchen. The Board viewed the tape at the hearing of this matter.
The camera angle shows part of the cafeteria kitchen, and a door that leads to a loading dock and parking lot. The tape shows an incident on June 10, 1998 in which Mr. Stamatiou is seen taking a box out of a refrigerator, placing it under his arm, speaking with someone who is off-camera, and then leaving the kitchen area by the back door. The second incident shows Mr. Stamatiou putting on his jacket, taking a foil-wrapped object out of a convection oven and leaving the kitchen area by the back door. The company claims that the foil wrap contained food from the cafeteria kitchen and that Mr. Stamatiou took it for his personal consumption without permission. The exact date of this incident is uncertain but the applicant states that it occurred close to the date of the first incident.
Noula Siklis gave sworn evidence for the applicant. She has been employed by Chef’s Catering for approximately eight years and is the manager of the company’s Markham Road location in Scarborough. She orders supplies, acts a server and helps in the kitchen. She testified that the company was concerned that Mr. Stamatiou was not treating customers or fellow employees with respect. She related one incident in which Mr. Stamatiou had offended some customers when conversing with them about the food. She stated that, on June 10, 1998, she saw Mr. Stamatiou taking a box out of the fridge. She stated that she did not know what was in the box and she did not see where Mr. Stamatiou went after he left the kitchen. She stated that she observed Mr. Stamatiou taking food out of the kitchen on other days but did not provide any details about these events. Ms. Siklis stated that, after the aforementioned “notice” was issued to employees, she mentioned to Mr. Stamatiou that he was not permitted to take food and that he replied “you are not a manager”.
Peter Siklis is the president and owner of Chef’s Catering. He testified that he trained Mr. Stamatiou as a chef. He stated that Mr. Stamatiou was never given permission to take food off the premises. Prior to working at the company’s Markham Road location, Mr. Stamatiou worked at its Commissioner’s Road location. Mr. Siklis stated that he was told by a security guard at that location that Mr. Stamatiou was taking boxes out the back door. However, he did not know what was in the boxes. In or about June, 1998, Mr. Stamatiou was transferred to the Markham Road location. Mr. Siklis testified that he is responsible for hiring and firing employees of the company. He stated that he was very disappointed in Mr. Stamatiou as they originally came from the same town in Greece and he was trying to help Mr. Stamatiou by employing him.
Justin Siklis testified. He is a vice-president of the company. He stated that the aforementioned “notice” was sent to each employee of the company because the company was very concerned about employees taking food. He explained how the video surveillance was set up in the kitchen. He stated that the claimant was terminated because he took food out of the “cafeteria premises” (i.e. where food is prepared and served). He does not know where the claimant took the food. The claimant was not followed in order to see where he went after leaving the back door of the kitchen. Mr. Siklis stated that on an earlier occasion he had observed Mr. Stamatiou taking boxes out of the Markham Road location and putting them into a van, and that he regarded this at the time as being suspicious.
Mr. Steve Stamatiou (the “claimant”) testified that when he was transferred to the Markham Road location everything was going well until Noula Siklis started interfering with his cooking. September 18, 1998 was his last day at work. He stated that he was fired without an explanation. With reference to the incidents on the tape, he explained that, in one incident (the “box” incident), he was speaking with Noula Siklis off-camera. He took a box of sausages from the fridge. The box was purchased by him that morning from the same meat supplier that supplies the company. He stated that he had permission from Ms. Siklis to buy the sausages. In the second (“foil package”) incident, he admitted that he took a “pop” from the storeroom but did not recollect what was in the foil package. He stated that it could have been his lunch that he did not have time to eat. With respect to the “security guard” incident at the Commissioner’s Road location, he stated that he confronted the guard and she said “forget it”.
Mrs. Noula Siklis was recalled as a witness. She stated that Mr. Stamatiou never asked her for permission to buy sausages and would not have been granted such permission.
Submissions
The applicant submits that Mr. Stamatiou was dismissed for taking food from the company premises, contrary to company policy as per the aforementioned “notice”. It relies primarily on the two incidents on the video tape viewed by the Board at the hearing, but alleges that these were not isolated incidents. It also cites his poor “attitude”. The company asserts that Mr. Stamatiou was guilty of “wilful misconduct”.
Mr. Stamatiou states that he still does not know why he was fired. He denies taking anything from the company without permission. Mr. Stamatiou states that the company did not complain to him about his performance as a chef.
The Ministry of Labour did not take a position. In its view, the matter comes down to a question of credibility as between Mr. Stamatiou and the applicant’s witnesses.
Decision
The issue in this case is not whether the company had the right to terminate the employment of Mr. Stamatiou. The issue is whether or not the company had a legal obligation to give Mr. Stamatiou notice of termination, or pay in lieu. The Employment Standards Act provides that an employee who is guilty of wilful misconduct, disobedience or wilful neglect of duty, that has not been condoned, is not entitled to termination pay under the Act. (The parties did not make submissions as to whether the alleged misconduct was condoned.)
The Board will comment upon the two video “incidents” separately. In the first incident, the claimant is seen taking a fairly large box out of the refrigerator, speaking with Noula Siklis (off-camera) and leaving by the back door. Mr. Stamatiou does not deny that he took the box. He says that he had permission to buy the sausages from the company’s supplier. He made no attempt on-camera to hide the box. The company is adamant that it did not give Mr. Stamatiou permission to buy food from its supplier.
The company’s “notice” to employees (referenced above) is of little assistance to the Board in its consideration of whether the “box” incident constitutes wilful misconduct, disobedience or wilful neglect of duty because the notice prohibits employees from taking the company’s food without permission. It does not address the issue of whether employees may buy food from suppliers. There is no evidence of a written policy about employees buying food from suppliers. Mr. Stamatiou testified that he had obtained permission to buy the box of sausages. It is therefore reasonable to conclude that he knew that the company prohibited such purchases being made without its permission. The issue then becomes whether he did in fact seek and obtain permission. The Board finds that Mr. Stamatiou did not seek or obtain permission to buy the sausages. The president of company (Peter Siklis) and the cafeteria manager (Noula Siklis) both stated (with considerable conviction) that Mr. Stamatiou did not ask for or receive permission to buy the sausages. I accept their evidence in this respect, and I conclude that Mr. Stamatiou knowingly violated company policy. However, this does not end the matter. The applicant must also satisfy the Board that Mr. Stamatiou’s misconduct was “wilful”, i.e. that Mr. Stamatiou engaged in the misconduct when he knew or should have known that the misconduct would likely be met with disciplinary measures. The applicant has not adduced sufficient evidence to satisfy the Board that the company warned Mr. Stamatiou that this kind of misconduct might have disciplinary consequences. Nor is the Board satisfied that the misconduct was so inherently wrongful that Mr. Stamatiou should have known, without being told, that it could result in disciplinary measures against him. Therefore, the Board finds that the “box incident” does not comprise sufficient evidence of wilful misconduct, disobedience or wilful neglect of duty within the meaning of the clause 57(10)(c) of the Act.
The second incident relied upon by the company involved Mr. Stamatiou taking what is presumed to be food wrapped in foil. On-camera, he made no attempt to conceal the package. There is insufficient evidence that the company policy, as stated in the “notice”, was contravened. The Board does not know what was in the foil package. It does not know who owned the contents of the package. And it does not know where the claimant took the package. There is no evidence that Mr. Stamatiou even took the package off the company’s property.
The applicant genuinely believes that Mr. Stamatiou was taking its food home (or off the company premises). But its video tape proves only that, on one occasion, Mr. Stamatiou left the kitchen with a box (which he does not deny) and, on another occasion took a foil-wrapped package and a pop out of the kitchen. The company suspected the claimant of other incidents of removing food from the cafeteria premises. It provided no proof as to when or how these incidents may have occurred.
The Board heard from Noula Siklis that the company had also become concerned about the claimant’s attitude and poor interaction with customers. He did not get along well with Noula Siklis, whose status as manager he seemed to resent. He was used to running the kitchen. However, if Mr. Stamatiou’s poor work attitude was the reason for his dismissal, there is insufficient evidence before the Board to show that it constituted wilful misconduct or that he was given any warnings about the consequences of his behaviour. The Board requires more than unsubstantiated allegations as a basis for establishing an exception under clause 57(10)(c) of the Act.
Mr. Stamatiou was summarily fired from his job, approximately three months after he was “caught” on camera. The company did not sit down with him to explain why he was fired, or to enable him to provide explanations for his conduct. He never got a letter of termination. This extraordinary delay in the face of alleged “theft” by an employee leads the Board to conclude that Mr. Stamatiou’s employment was terminated because, quite simply, he did not get along with his supervisors.
For the reasons stated above, the Board finds that the applicant has failed to adduce sufficient evidence to support its assertions that Mr. Stamatiou was guilty of wilful misconduct, disobedience or wilful neglect of duty.
Disposition
The application is dismissed.
The Board directs the Director of Employment Standards to pay out the money held in trust as follows:
To the claimant, Mr. Steve Stamatiou $1248.00
To the Government of Ontario
Consolidated Revenue Fund 124.00
Interest accrued on the above amounts
while held in trust shall be paid to the
recipients pro rata.
“Anthony Brown”
for the Board