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 Occupational Health and Safety Act, to monitor employee blood levels for lead.
The employee had 7 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 culminating incident, he failed to wear a respirator in the plant and be clean shaven for an effective mask seal.
The arbitrator concluded as follows:
“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 4 months after serving a 25-day suspension for multiple misconducts during the 6-week period after he was disciplined on October 12, 2011. The grievor’s evidence and wholly inadequate “apology” demonstrate that that [sic] 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 that 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 . . . [L]engthy 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.
Tonolli Canada Ltd. and USW, Local 9042 (Marsiglia), Re, 2013 CarswellOnt 3855 (Ontario Arbitration, 2013)
