'The employer just didn't do their own thorough investigation about what actually happened'
Termination of employment was excessive for a British Columbia worker who committed a serious safety infraction but was apologetic and had no previous safety violations, an arbitrator has ruled.
The employer’s approach to the worker’s misconduct and the decision to dismiss was full of misunderstandings and misconceptions, according to Melanie Samuels, chair of the Employment and Labour Group at Singleton Reynolds in Vancouver.
“[The employer] seemed to ignore the actual circumstances of what happened in the incident, did a shoddy investigation and just jumped all over it,” says Samuels. “It's almost like they ignored what actually happened, both in terms of the incident and [the worker’s] remorse.”
Cascades ContainerBoard Packaging is a manufacturer of cardboard products based Quebec. It hired the worker in 2016 to work in its plant in Richmond, BC. In 2022, he was placed in the job of clamp driver at the corrugator machine in 2022.
The worker’s placement in the clamp driver role was part of the plant’s mandatory progression policy, where employees progressed up a line of jobs within their department. The worker didn’t want to be a clamp truck driver as it was a stressful position, but he couldn’t refuse due to the policy.
Heavy equipment, safety procedures
The clamp driver selects and moves large rolls of paper that serve as raw material from the warehouse to the corrugator machine that starts the manufacturing process. The rolls are 6,000 pounds and are placed in a line about 100 feet long at the corrugator machine using a clamp truck – a large forklift-type truck. A roll is delivered by lowering it to the floor and releasing the lower jaw of the clamp, allowing a controlled roll before releasing the upper clamp for a short roll onto the line.
In front of the corrugator machine was an enclosed area marked with yellow painted lines on the floor. Access to the area was controlled with pedestrian gates and amber lights that flashed when the clamp truck was operating within the area. Cascades policy required the clamp truck driver to stop at the yellow painted stop line by the entrance and prohibited the truck from crossing the line without permission from the corrugator crew, who turned on the amber light.
Cascades had a formal progressive discipline policy that outlined discipline for “major” unsafe behaviour, defined as “conditions causing or having the potential to result in days away from work, permanent impairment, or death.” The discipline included a three-day suspension without pay to start, followed by a five-day unpaid suspension and then termination of employment for cause.
The worker had a written warning for carelessness in the damage to a trailer on his record. He also had a “discussion” with management regarding parking the clamp truck in the yellow safety zone.
On Sept. 21, 2023, the worker delivered a roll to the corrugator machine and let the roll free-roll to hit a second paper roll in in the line. A member of the corrugator crew turned off the amber lights and signalled for the worker to wait while he turned to the roll stand. He heard yelling and a thud as a roll came to rest beside him. He later estimated that the first roll was bumped a few feet and, when he turned, he saw the clamp truck backing up 40 to 50 feet away.
Safety incident reported
The incident was reported to the production supervisor, who met with the worker. The worker explained his version of the incident and was told to return to work.
The supervisor wrote a statement reporting that the worker pushed the roll down the floor, initially controlled with the clamp truck jaws, and then he allowed it to free roll away. He estimated that it rolled about 26 feet from where the corrugator crew member was. The supervisor indicated that the worker apologized and said he would never do it again. The worker said later that day that he let the paper roll down 25 to 30 feet to its station using the clamp, and then a few feet free-roll at the end.
At an investigation meeting on Sept. 26, the worker said that he was already in the yellow zone when the amber light was turned off, so he yelled and gestured for the corrugator crew to turn it back on so he could finish. The crew member waved him away, which made him angry so he proceeded to deliver the roll, pushing it in a controlled manner and releasing it about eight feet away from another roll on the line. He said he didn’t think it was unsafe at the time because he could see everyone, but he later realized it was unsafe and apologized. He emphasized that he wouldn’t do it again.
Cascades felt that the worker had changed his story from his initial statement. The company determined that the worker had entered the yellow area while the lights were off and let the roll run free from the yellow line about 40 or 50 feet until it hit another roll. The company dismissed the worker for a serious safety violation involving the operation of heavy equipment and movement of materials in an unsafe manner, along with dishonesty during the investigation, lack of remorse, and his disciplinary record.
The union grieved, arguing that dismissal was excessive in the circumstances.
Serious safety infraction
The arbitrator noted that safety infractions were considered “among the most serious of workplace offences” and there was no question that the worker committed a serious safety infraction that warranted discipline.
However, the arbitrator found that Cascades reached its dismissal decision based on misunderstandings. The company believed that the worker entered the yellow area while the lights were turned off, but the worker’s version of events maintained that he was already in the area when they were turned off. The supervisor’s written statement supported this, so it was unclear where the idea came from, said the arbitrator, adding that continuing to work once the light was turned off was serious, but it wasn’t as egregious as entering the area with the light off.
The arbitrator also found that Cascades assumed that the worker let the paper roll run freely and out of control for up to 50 feet, rather than the eight feet the worker claimed, and he changed his story from the day of the incident. However, there wasn’t much of a difference, as the worker initially said he pushed a roll 25 to 30 feet in a controlled way with the clamp – also consistent with the supervisor’s statement. The worker was consistent in the distance the paper roll was let free and the supervisor wasn’t interviewed to clarify things, the arbitrator said in finding that the company’s understanding of the details of the incident were “significantly in error” and the worker wasn’t dishonest.
“They said that the worker’s second statement was inconsistent with his first, but it wasn't, even on the face of it - the second one was just more detailed,” says Samuels. “The employer just didn't do their own thorough investigation about what actually happened and then it was a total fail on his remorse - once it was pointed out to him how serious the issue was, he consistently owned it and was apologetic.”
Cascades was mistaken in concluding that the worker didn’t acknowledge his wrongdoing or apologize, as it was clear that the worker did so at every meeting, to the supervisor immediately after the incident, and even at the hearing. In addition, the company had misconceptions about the worker’s disciplinary record, as he only had a written warning for carelessness relating to damage to property, not safety.
Progressive discipline
Based on the company’s misconceptions about the worker’s misconduct and prior discipline, the arbitrator found that dismissal was excessive. Cascades’ progressive discipline policy listed a five-day suspension as preceding dismissal for cause, so the arbitrator determined that a five-day suspension was appropriate. Cascades was ordered to reinstate the worker and compensate him for lost wages and benefits since his dismissal, outside of the suspension.
“[Cascades] had a progressive discipline policy, but they didn’t really follow it - if you're going to have it, you can only rely on it if you actually use it consistently,” says Samuels. “It doesn't look like they did that because he only had one minor infraction before that wasn’t safety related, so it wasn't progressive discipline on a safety issue.”
“I think they had it out for this guy or they wouldn't have approached it the way they did - you have to approach everything with good faith,” she adds. “Arbitrators don't usually use the term bad faith [as courts do] but that's the approach - you have to treat people fairly.”
