- Recent Construction Industry Safety Violation Discipline Decisions: Due Diligence Means Enforcing Rules
- May 21, 2014 | Author: Clarence L. Bennett
- Law Firm: Stewart McKelvey - Fredericton Office
Effective health and safety programs must meet provincial occupational health and safety standards and employers must always exercise due diligence in taking steps to meet those standards. Ongoing enforcement of a health and safety program is a must. If not, it is arguable that the employer is not meeting its due diligence requirements and may face unnecessary difficulty defending an occupational health and safety prosecution. While progressive discipline is almost always followed by arbitrators, the abbreviated recent cases below provide examples of what other issues arbitrators look at when determining disciplinary consequences for health and safety violations. From where we sit, arbitrators are taking violations of health and safety rules in the construction industry seriously. Why? A good explanation can be found in paragraph 8 of the EllisDon Ltd. v. LIUNA, Local 506 2013 CarswellOnt 16244 (discussed in more detail below):
The construction industry is very dangerous. There are a very high number of injuries in this industry every year. Safety on a construction site is rightfully taken very seriously. The Ministry of Labour requires every employee working on a construction job site to receive job site specific orientation pursuant to which the employee is alerted to site specific hazards such as the presence of chemicals or overhead wires...
1. The punishment must fit the crime, but are there mitigating circumstances?
Atco Electric Ltd. and C.E.W.A. (Gelych), Re 2012 CarswellAlta 1400 (Power, Bartee and Neuman (dissent))
The grievor was a Powerline Technician and was a Team Lead. The grievor intentionally approached a co-worker slowly in a company vehicle. In doing so, he came so close that if he misjudged the distance between the vehicle and the co-worker, there was the potential for injury. There was also an incident where the grievor attended a high voltage display meeting and made comments during the course of a presentation at a fire hall that were unprofessional and harmful to the employer's reputation. The company investigated and determined that the grievor's behaviour was reckless, it put co-workers safety at risk and the comments he made at the meeting were unprofessional. He was then removed as Team Lead and demoted to Powerline Technician with a corresponding reduction in salary.
What did the arbitration board do?
The Board at Atco Electric Ltd. found that discipline was warranted, but that demotion was excessive given the previous good record of the grievor, his moderate length of service, the isolated and spur of the moment nature of the event, and the grievor's agreement that he would live up to the employer's expectations. The Board reinstated the grievor as Team Lead following a one week suspension.
2. Culminating incident - follow the safety manual!
National Steel Car Ltd. and U.S.W., Local 7135 (2012), 110 C.L.A.S. 372 (Chauvin)
A radio control crane operator who had recently returned from a 128 day disciplinary suspension was insubordinate by walking out of a meeting with his supervisors, violating plant rules by improperly and unsafely carrying a load with an uneven spreader bar, and dishonest with management in their investigation. The employer discharged the crane operator.
What did the arbitrator do?
The discharge was upheld. The arbitrator said the grievor's improper and unsafe conduct, dishonesty, and insubordination were serious culminating incidents. The employer's safety manual made it clear how a spreader bar is used and specifically stated that the improper use of a spreader bar was a prohibited unsafe act that can injure co-workers and which is subject to discipline. The grievor was aware of the proper use of the spreader bars and had signed off on a previous reinstatement as having received refresher safety training specifically on spreader bars:
...On the facts of this case, it appears to be inexplicable why the Grievor would have improperly used a spreader bar properly, especially so shortly after he had been reinstated to employment. The Grievor chose to not testify. Accordingly, we have no explanation whatsoever from the Grievor as to why or how this could have happened.
3. Site safety absolute rules, compliance with policies, training and handbooks and consistent discipline
Resource Development Trades Council of Newfoundland and Labrador ("RDTC") and Long Harbour Employers Association ("LHEA") 2013 CanLii 88826 (Oakley)
The grievor, a scaffolder, was terminated after failing to comply with a six foot tie-off rule. Compliance with this rule was site safety absolute and the prescribed penalty was immediate termination. The union grieved stating that it did not agree that the rule was site safety absolute, that it was not a reasonable rule as it was inconsistent with the collective agreement, and that the employer applied the rule inconsistently.
What did the arbitrator do?
The arbitrator upheld the discharge saying the rule was applied consistently and that it was reasonable and communicated to the grievor:
...the six foot tie-off rule is reasonable, having regard to the risk of health and safety from falling from the height of six feet or higher, and the fact that a six foot rule tie-off is in effect at other construction sites in Newfoundland and Labrador and in other Provinces. The rule was clear and unequivocal, having regard to the statements of the rule in the Employee Handbook, the orientation slides and the KBAC Constructors wallet card. The rule was brought to the attention of the Grievor in the Employee Handbook and at the orientation. The Grievor signed the Acknowledgement of Receipt Form in the Employee Handbook. He signed the FLHA Form, that listed the six foot tie-off rule, before he started to perform the task of modification of the scaffold. The Grievor was notified by the Handbook and the orientation slides that breach of the rule would result in discharge. Although the penalty of discharge is not binding on the Arbitrator, the fact that the penalty was communicated to the Grievor is an indication of the seriousness of violating the rule.
4. Repeat incidents and lack of rehabilitation prospect
Tonolli Canada Ltd. and USW, Local 9042 (Marsiglia), 2013 CarswellOnt 3855 (Surdykowski)
The grievor, who had 37 years' seniority, was discharged for health and safety related incidents occurring on two consecutive days that the employer considered culminating incidents: arriving at work without being clean shaven. The union acknowledged the misconduct but submitted that discharge was excessive. The grievor had previously received warnings for failing to be clean shaven, failing to wear a hard hat, safety glasses and mask, and failing to wear a respirator and had previously promised that he would do better at meeting these rules.
What did the arbitrator do?
Upheld the dismissal saying the employer had reached a reasonable conclusion that the grievor could not be rehabilitated:
...this case presents a 58-year old grievor with 37 years of service (at the point of discharge) who is guilty of two incidents of health and safety related misconduct on consecutive days, less than a month after receiving a written warning and what amounted to a counselling for related health and safety misconduct (on April 11, 2012), and a little over 4 months after serving a 25-day suspension for multiple misconducts during the 6-week period after he was disciplined on October 12, 2011. The grievor's evidence and wholly inadequate 'apology' demonstrate that he still does not fully acknowledge or accept responsibility for his misconduct on either April 30 or May 1, 2012. The Company has reasonably concluded that its efforts to rehabilitate the grievor have been fruitless, and that it can no longer tolerate his presence in the workplace.
5. Short-term off-duty employee observed on job site without safety orientation
EllisDon Ltd. v. LIUNA, Local 506 2013 CarswellOnt 16244
The grievor was a short service employee (14 working days) who was observed on a job site that was not his own. A video showed that he parked his car inside the gates of the job site and that construction activity was taking place on the job site. The video showed the grievor walking around while not wearing a hardhat or reflective vest as required by the company's safety policy. He was also shown walking in close proximity to moving equipment. At one stage, he nearly walked into a mini excavator as it swung around toward him. He was seen stepping into a trailer with a lit cigarette, also against the company's policy, and then exiting again with a lit cigarette. The grievor left the job site and walked to a liquor store where he purchased a six pack of beer. He returned to the job site and carried the beer into the trailer. Shortly after, he was seen exiting the trailer with the six pack of beer which he placed in his car. The decision was made to terminate.
What does this mean to you?
Progressive discipline is pretty much the same when it comes to occupational health and safety as it is to other disciplinary issues (i.e., insubordination, etc.). It is critical to organizational safety for employers in all industries, including construction, to make discipline for occupational health and safety violations a priority. Progressive discipline can make the difference for an organization charged with an offence in establishing that it has taken "reasonable steps to ensure the effective operation of the system." As noted in this edition's Safety begins with you: what construction employers in Atlantic Canada need to know about occupational health and safety consistently enforce rules when it comes to health and safety.