Workplace safety more important than employee's length of service when finding just cause: Arbitrator
We don’t often hear of 37-year employees being fired for just cause. An arbitrator has recently upheld the dismissal of a long-service unionized employee for safety violations.
The employer was a recycler of lead, and thus had important safety rules which included the use of respirators. The employer was required, by the Ontario Occupational Health and Safety Act, to monitor employee blood levels for lead.
The employee had seven disciplines on record in the past year — including a recent 25-day suspension — some of which were for safety violations. The arbitrator referred to the employee’s "year-long journey of disciplinary misadventure" that ended with two safety-breach "culminating incidents" that occurred on successive days.
In the first culminating incident, the employee failed to wear his hard hat, safety glasses and mask in the plant. In the second, he failed to wear a respirator in the plant and be clean shaven for an effective mask seal.
"In the result, 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 four months after serving a 25-day suspension for multiple misconducts during the six-week period after he was disciplined on Oct. 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."
The arbitrator noted the cases "demonstrate that workplace health and safety is a serious matter. The jurisprudence (not limited to the cases cited) makes it clear that arbitrators take the mutual responsibility of employers, unions, and employees to ensure workplace health and safety is very seriously . . . Lengthy service by itself has less mitigation currency in health and safety misconduct cases than it has in other kinds of cases."
In the result, the employee’s discipline history, the seriousness of his safety violations, and the lack of a sufficient apology, along with the two culminating incidents, justified his termination — despite his unusually long service.
For more information see:
• Tonolli Canada Ltd. and USW, Local 9042 (Marsiglia), Re, 2013 CarswellOnt 3855 (Ontario Arb.).
Adrian Miedema is a partner with Dentons Canada LLP in Toronto. He can be reached at (416) 863-4678 or [email protected]. Adrian's discussion of this case also appears in the Dentons blog www.occupationalhealthandsafetylaw.com.
