No Excuses: Just cause dismissal upheld for safety violations

by Stuart Rudner and Brittany Taylor

It is perhaps common knowledge that the standard for just cause dismissal is high, and that a single incident of misconduct on the part of an employee will not usually be sufficient to reach this threshold.

However, this is not always the case — particularly where an employee’s misconduct puts herself, other employees, or the public in danger.

In Balzer v. Federated Co-operatives Limited, the Saskatchewan Court of Appeal upheld the dismissal of an employee for cause after he violated a number of safety protocols that caused the release of a significant amount of propane vapour into the environment.

The employee, Leonard Balzer, was hired as a propane coordinator in 1996 and, at that time, underwent a lengthy training process.

Over the years, he also completed a number of additional training programs on the safe handling and transportation of propane, and was equipped with an orange wallet-size card that set out the names and contact numbers for agencies to call in the event of an emergency.

In the fall of 2002, Balzer was filling his delivery truck with propane on Federated’s compound. Before starting, however, he failed to place the fail-safe braking system behind the rear wheels of his truck. Balzer left the truck unattended several times while it was being filled, but returned to his truck when he thought it was about 80 per cent full. He turned off the pump and, again, left the truck unattended without disconnecting the fill hoses from the truck.

When Balzer returned to the truck to begin his deliveries, he failed to walk around the passenger side of the truck, failed to disconnect the hoses and, instead of driving forward, began to back up the truck. As a result, the back check valve pulled loose from the barrel of the truck, and propane vapour began escaping from the fill line.

Propane vapour escaped into the environment for about 15 to 30 minutes. While the release of vapour was ongoing, Balzer left the Federated compound to borrow a pipe wrench from an adjacent property to try and reinsert the valve that had pulled loose. Once the release of vapour had ceased due to the auto-refrigeration of the liquid propane, he contacted a co-worker who was, at the time, about 100 km away from the compound. Balzer then left the compound for one hour for lunch, returning in the afternoon to continue to attempt to fix the valve.

Balzer did attempt to contact his immediate supervisor via the fleet radio system, but did not leave a message when he failed to reach him. He made no attempt to contact a more senior member of the Federated team, or to call the 24-hour emergency number written on his orange wallet card.

Eventually, Balzer’s co-worker arrived at the compound and, identifying the seriousness of the situation and potential environmental hazard, persuaded him to report the incident to a senior manager. After making his report, Balzer then left the Federated compound, as he had a meeting scheduled the following day on an unrelated matter, leaving his co-worker in charge of the vapour leak problem.

Following an investigation, Federated determined that Balzer had committed a number of infractions in direct violation of its safety protocols, including failing to place the brake safety behind the rear wheels of the truck, failing to turn off the valves and disconnect the loading lines and failing to notify the local authorities and Federated management of the potential danger.

Furthermore, Federated determined that Balzer had made a number of significant “poor judgment calls,” including going for lunch and leaving a hazardous situation unattended, leaving his co-worker (and subordinate) alone to deal with the issue, and backing up the truck in the first place when it should have been driven forward.

As a result, it made the decision to terminate Balzer’s employment for cause. He brought a claim for wrongful dismissal.

Trial decision
At trial, the judge upheld Balzer’s dismissal for cause. As the dismissal for cause was related to the violation of a “rule” established by the employer, the court considered the following factors to justify dismissal:

• The rules must be distributed.
• The rules must be known to the employees.
• The rules must be consistently enforced by the company.
• The employees must be warned they will be terminated if a rule is breached.
• The rules must be reasonable.
• The implications of breaking the rules in question are sufficiently serious to justify termination.
• Whether a reasonable excuse exists.

The trial judge had no issue concluding that the first six elements were satisfied. In regards to the seventh factor, the court did not accept Balzer’s claim that he had inhaled propane vapour and, as a result, his judgment was impaired, noting that being “stressed and frightened” did not amount to a reasonable excuse to violate safety protocols.

The appeal
Balzer appealed on two main arguments: 1) that faulty equipment, and not his actions, ultimately lead to the propane leak, and 2) that the trial judge failed to appropriately assess whether the dismissal was “proportionate” to the seriousness of the incident.

The court rejected Balzer’s first ground of appeal, identifying that “the fundamental problem with Mr. Balzer’s argument... is that he was not terminated because of the propane leak itself. Rather, Mr. Balzer was terminated because he had failed to comply with Federated’s safety policies and procedures before, during and after the leak.”

Importantly, Balzer had not challenged the factual findings of the trial judge that he had, indeed, failed to comply with the procedures in question (in fact, Balzer himself acknowledged at trial that his performance in this regard was substandard).

With respect to the second ground of appeal, Balzer attempted to argue that while he may have been negligent, the “overall situation was not as dangerous as Federated portrayed and, in any event, Federated failed to assess its own response in the circumstances.” Again, the court disagreed, finding that it was clear that the trial judge understood the law and the importance of proportionality when making its determination.

Conclusion
The decision in Balzer emphasizes the importance that courts will place on issues relating to safety. In this case, the safety protocol violations themselves were significant, but it was also Balzer’s considerable lack of judgment in response to the safety incident that contributed to the seriousness of the situation and supported the employer’s ultimate decision to terminate his employment for cause.

The fact that the employer had invested significant time in continuous training for Balzer, and provided him with a clear emergency response plan in the event of such an incident, was a crucial element of the employer’s success in this case. Had Balzer not been properly trained, or advised of the employer’s emergency response protocol, it would have been difficult for Federated to argue that he failed to comply with its policies.

This case should serve as a warning to employees that, even in high-stress situations, they are expected to comply with safety protocols clearly established by their employers. Similarly, the decision in Balzer should highlight for employers the importance of establishing and training employees on safety protocols, especially in the event of an emergency.

Brittany A. Taylor is a senior associate at Rudner Law in Toronto.