What were they thinking?

Legal and safety implications of odd workplace behaviour

By Cheryl A. Edwards, Samantha Seabrook, and Jeremy Warning

Discussions of workplace discipline for safety infractions are, generally, serious matters. Workplace incidents may cause worker injury and deserve thorough investigation, remedial steps, and appropriate attention by the government regulator. Every once in a while, however, when taking a hard look at human behaviour and safety mishaps in the workplace, we have to take a step back and ask ourselves: Just what were these workers thinking when engaging in some of the astounding behaviour that occurs in Canadian workplaces?

With the caveat that we acknowledge that safety is a serious matter and that some of these incidents resulted in injuries to workers, here are a few decisions from across Canada involving behaviour that can only be characterized as unexpected and bizarre.

•  A mechanic picks up a pneumatic nail gun, checks it in the air, and when it does not fire, holds it against the abdomen of a co-worker. It discharges a steel nail into the co-worker’s stomach. The offending worker convinced his co-worker not to go to the hospital and not to report the incident to management. The incident does come to management’s attention and the discharge of the offending worker is upheld by an arbitrator. This was a second, and serious, safety infraction for this worker and the arbitrator recognized the employer’s legal obligation to provide a safe and secure workplace for employees.

•  A 30-year employee works in a plant with highly pressurized and flammable gases. As a joke, the employee twice sets off firecrackers in the plant. The employee is a member of the plant’s joint health and safety committee and has taken numerous safety courses over the years. The employee’s discharge was upheld at arbitration because the seriousness of the offence outweighed the employee’s long service and clean disciplinary record.

•  A six-month employee creates several “dry ice bombs” where pieces of dry ice are placed in 500 ml plastic bottles with water. The chemical reaction causes the bottle to explode. All of the bombs explode. One explodes near a co-worker who suffers temporary deafness and ringing in his ears. The arbitrator found that the employee intentionally made the dry-ice bombs and carelessly and negligently put others at risk. However, the arbitrator held that discharge was not appropriate in the circumstances. The arbitrator substituted discharge for a one-year suspension.

•  For $100, an employee staples his scrotum to a 4- by 4-inch wooden plank in the workplace lunchroom. The stunt is recorded and a co-worker posts the video on the internet. The employer finds out. The employee’s discharge is upheld by the Ontario Labour Relations Board. The Board held that the employee may be free to engage in self-abuse only when not in the workplace and when not identified as being associated with the employer.

While the behaviour displayed in these incidents is astonishing, what is clear from each case is that arbitrators and labour boards take the issue of health and safety seriously, and are willing to uphold severe discipline and even discharge when the circumstances warrant.

The responsibility of employers and supervisors to provide a safe work environment has been recognized as just cause for discipline. Yet, certain considerations must be accounted for in order to best ensure that the disciplinary response is to be upheld. The case of Con-Agra provides an example of a situation where a worker violated a fundamental and significant safety rule that had been made very clear in the workplace.

Shrink wrapping incident

In Con-Agra Ltd. v. U.S.W.A., Local 6034 (2008), 169 L.A.C. (4th) 29 (Moreau), discharge for a single safety infraction was upheld. The worker, who was also a member of the joint health and safety committee, was discharged for failing to lock out a shrink wrapping machine during maintenance. The worker attempted to clean a spinning wheel with a rag. The rotating wheel caught on the rag, flipped his hand over and removed his thumbnail.

Con-Agra had spent the previous three years improving its safety program through a series of letters and training seminars with emphasis on the Lockout/Tag out policy. Daily “Shift Safety Audits” were conducted, and on-the-spot training was provided if a worker was not compliant. The company had advised its workers that “serious discipline, including termination” would be given for “serious violations” of the lockout procedures.

Arbitrator Moreau found the employer went to “exceptional lengths” to instil the importance of its safety procedures. Here, the worker made a “deliberate and conscious decision” to ignore the lockout procedure in the fact of extensive training and reminders of safe work practices. The discharge of the worker was upheld.

Arbitrators recognize the importance of safety in the workplace, and that discipline is an appropriate, and expected, method of enforcing an employer’s safe work procedures. In dealing with inappropriate workplace behaviour, employers that make their expectations clear through training and consistent application of discipline for safety can discipline, and even discharge an employee for a first-time safety violation.

Arbitrators and decision-makers have established a number of principles necessary to upholding discipline for safety infractions. Front-line supervisors must be aware of these principles, the most important of which are knowledge of the rule or procedure, consistency, and progressive discipline.

Ongoing safety culture

Knowledge can be instilled through training, posting of rules, or safety reminders such as crew or safety meetings. Employee training should be documented whether it is formal training or more informal safety talks. One of the most frequent reasons for overruling discipline at arbitration is the employer cannot prove the employee knew of the rule or procedure.

Consistency in enforcement is a fundamental principle of fairness and is, therefore, fundamental to what constitutes a fair penalty for a safety infraction. Without consistency, employers are likely to find their discipline overturned. In Toronto Hydro v. CUPE, Local 1 (Kerr Grievance), [2009] O.L.A.A. No. 438, an arbitrator substituted a suspension for the discharge imposed after an arc-flash occurred while work was performed on a cable that had not been de-energized. Two employees were injured. A previous similar incident did not attract a disciplinary response and two other crew members involved in the incident had only received letters of warning.

The crew leader, an employee of 31 years, failed to spear the cable to ensure it was de-energized. The crew leader had previously failed to spear a cable in 2001, for which the company did not impose discipline. In substituting a suspension for the discharge, the arbitrator held that, while not wanting to undermine the employer’s safety efforts, the inconsistent response could not be overlooked when considering the appropriate penalty for the infraction.

The need for consistency was also expressed by an arbitrator in Allied Aviation Services of Newfoundland, (unreported, May 12, 2010). The griever had only received verbal and written warnings for four incidents of safety violations. Each reprimand letter warned the griever that he could face more severe discipline, including discharge, for further infractions, but more severe discipline was never imposed for subsequent incidents.

Be consistent

The arbitrator commented that it was not open to the employer to impose more severe discipline unless it was made clear to the griever that such discipline was forthcoming. An empty threat that severe discipline could be imposed would be insufficient to justify a long suspension or discharge unless the employer engaged in progressive discipline.

Imposing an appropriate penalty is the final consideration after it has been determined that a safety infraction has occurred. The appropriate penalty will be viewed from the perspective of progressive discipline. Discipline is to be corrective and more severe penalties should follow subsequent to more serious infractions.

As such, safety related discipline does not have to begin with a written or verbal warning. Where an incident has resulted, or could have resulted, in serious injury, arbitrators have found that employers are justified in imposing severe discipline for a one-time violation.

Decision-makers are expected to review all relevant factors including: the length of service of the employee, the employee’s disciplinary record, whether they have immediately apologized and committed to change their behaviour, and the actual/potential consequences of the incident.

Discipline for safety is a crucial part of any health and safety program. It is an indispensable component of an effective due diligence defence. By integrating discipline into a health and safety program, management and supervisors will have the tools and knowledge with the full range of workplace human behaviour to enforce safe work procedures, and ensure a safe workplace.

Cheryl A. Edwards, Samantha Seabrook, and Jeremy Warning practice labour and employment law in the Toronto office of Heenan Blaikie LLP.

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