'All the training that the employer wished to invest in him really had no effect': lawyer
A Newfoundland and Labrador arbitrator has upheld the firing of a worker for violating lockout procedures in a safety-sensitive workplace, despite the fact that the worker had no prior discipline.
The worker’s clean disciplinary record would cause some concern regarding the level of discipline, but the employer demonstrated that it made significant efforts to ensure employee safety and the worker presented a risk, says Michelle Willette, a partner with Cox and Palmer in St. John’s.
“The employer was able to readily show that the [worker] had received training and understood the importance of the lockout procedure, he was aware that two other employees had been terminated for failing to lock out in the preceding two weeks, and he was aware that a co-worker had been killed at the worksite four years prior that was in the minds of everybody in this workplace,” says Willette.
The worker, 58, was employed as a casual labourer with Atlantic Minerals Limited (AML), a producer of high-calcium limestone and dolomite at a quarry and plant on the west coast of Newfoundland. He joined AML in 2015.
Due to the nature of the quarry worksite, AML prioritized safety by training employees regularly on safety procedures and monitoring the site with numerous video cameras.
Lockout policy for workplace safety
One particular safety policy involved lockout and tagout of machines. This involved using locks to render a machine inoperable and applying a tag with the time and date of locking. This was required for any machine before performing maintenance.
In 2018, an employee died from injuries sustained after failing to lock out energized equipment. Following this incident – for which AML was fined under occupational health and safety legislation and a supervisor was convicted – the company increased its emphasis on safety with a focus on the lockout/tagout policy.
Over seven years with AML, the worker did not have any discipline or safety violations on his record.
In April 2022, two employees failed to follow the lockout policy and their employment was terminated. A month later, AML revised the policy and trained all employees on it. The worker also attended a toolbox meeting on May 7 that presented the procedure and requirements, which was followed by additional safety training in early June.
On June 21, the worker was assigned the duties of ship loading assistant. The night shift loading assistant who was coming off duty told the worker that a particular conveyor belt was making a mess and he should keep an eye on it. This sometimes happened when material built up on the belt’s rollers, causing them to stop and skewing the belt as it continued to move.
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Worker cleaned belt without locking it out
The worker saw that most of the rollers were buried in material and they weren’t turning, so he picked up a rake, stood up on a railing, reached toward the rollers, and raked material from the moving conveyor. He had one leg over the railing and hooked his other leg to a lower railing while doing it. He did not lock out the conveyor belt.
At the same time, a site geologist was viewing live security camera feeds and saw the worker shovelling material off the conveyor belt. When he zoomed in, he observed that the belt was running, so he showed the feed to the operations manager, who then called the production supervisor.
The supervisor told the worker to go home pending an investigation and the worker said, “I f---ed up, I guess it will be an early retirement.” The worker also said that he always locked out the equipment before cleaning the conveyor belt, but he just didn’t on that day.
Despite his acknowledgment of the lockout policy, the worker insisted that he was not in any personal danger, he was well-balanced on the railing, and there was no place he could fall. He also acknowledged doing it two or three times that morning.
AML investigated and informed the Newfoundland and Labrador OHS division, which also investigated.
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Gross negligence by worker
AML decided to terminate the worker’s employment for “gross negligence” and violating the lockout/tagout procedure. Under the collective agreement, gross negligence and violation of posted rules were reasons for dismissal without a prior warning.
The union grieved the dismissal, alleging that AML violated the collective agreement by discharging the worker without just cause. It acknowledged that discipline was warranted, but it contended that termination was not justified without prior discipline.
The arbitrator noted that AML made significant efforts to educate its employees on safety policies and the lockout procedure in particular, especially after the 2018 workplace fatality. Reviewing and updating policies, training employees, toolbox meetings, and safety forms all should have made the worker understand the importance of the procedure, said the arbitrator.
The arbitrator found that AML did everything it could to make the worker understand the need to follow safety policies and, from the company’s perspective, termination became the only remaining way to keep the worker safe – especially since the worker determined on his own that he didn’t need to follow the policy.
“[AML] did a good job of documenting their training on the policy and they consistently applied it - the termination of the two electricians within a couple of weeks preceding this incident and they revisited [the policy] and retrained employees as required,” says Willette. “And they didn't jump to judgment - they conducted an investigation and referred it to occupational health and safety, and I think that was viewed positively by the arbitrator.”
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Not an isolated incident, says arbitrator
The arbitrator also found that, although the worker had a good employment record with no prior discipline, he acknowledged in the hearing that he had done it two or three times before as well as multiple times on his last day of work. This meant that it wasn’t an isolated incident, said the arbitrator.
The union argued that the worker owned up to his misconduct immediately, but the arbitrator disagreed. Although the worker acknowledged what he did, he maintained that he wasn’t in danger, which raised questions about whether he could be trusted to never do it again, the arbitrator said, noting that the worker didn’t mention during the investigation that he had done it before – that didn’t come out until the hearing.
The arbitrator found that the misconduct qualified as just cause without a warning under the collective agreement, as AML specifically listed gross negligence as a reason for termination. In addition, two other employees were terminated a month before the incident, so the company’s discipline was consistent, the arbitrator said.
The arbitrator also found that the worker using his own judgment to override the lockout policy in a workplace where an employee had been killed was a serious breach of trust. In addition, the worker only admitted to doing it after he was caught, which irreparably damaged the employment relationship, said the arbitrator in dismissing the grievance.
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Worker made own determination
The fact that the worker made his own determination and he felt safe enough to disregard the procedure was a key determiner, says Willette.
“[The worker] disregarded the workplace procedure based on his own view of his safety - and what came out in the arbitration hearing is that this was not the first time he had disregarded the policy to determine his own level of safety,” she says. “Which in effect shows that he's untrainable - all the training that the employer wished to invest in him really had no effect.”
Cases are always evaluated on a case-by-case basis, so it’s difficult to say when serious safety violations can be just cause for dismissal without prior discipline, but employers can help their cause through due diligence, says Willette.
“Employers would like to think it would [always be just cause] because they're there obligated under statute to provide safe work environments,” she says. “So from an employer perspective, do their due diligence on training and recordkeeping in terms of what training they provide, all the safety measures they take, and the disciplining of employees who violate those policies - it's all part of their due diligence to show under occupational health and safety legislation that they've done all they can do to provide a safe work environment.”
See IUOE, Local 904 and Atlantic Minerals Ltd. (Renouf), Re, 2023 CarswellNfld 183.
