Without discipline h&s due diligence falls apart

By Cheryl Edwards
|Canadian HR Reporter|Last Updated: 09/04/2003

Imagine a situation in which your company has carefully cultivated a detailed and ongoing health and safety program, but supervisors do not enforce the program with discipline.

A favourite tactic of prosecution lawyers in cases alleging violation of health and safety regulatory standards, is to ask supervisors if unsafe practices usually resulted in progressive discipline, or any discipline at all. Too frequently, the response from management sounds something like, “Yes we told them, we kept reminding them, we told them until we were blue in the face. What more could we do?”

The answer, in short, is discipline for safety infractions.

It would likely come as a surprise to many HR professionals that courts and arbitrators expect that employers use discipline as a fundamental aspect of due diligence.

The language of health and safety statutory duties and responsibilities across Canada require workplaces to “ensure” or “require” health and safety standards are met.

Since a 1978 decision by the Supreme Court of Canada, enforcement of safety rules and policies has been repeatedly stressed as a key component of a “due diligence” defence to a charge of violating occupational health and safety standards.

An organization may have spent significant time and resources in developing a system for safety infractions, including rules, policies, training, and monitoring. Yet even if all of the other elements of a due diligence defence are in place, lack of ongoing enforcement of the system is treated as a lack of complete “due diligence” and the defence will fail on this ground.

In a 1998 prosecution case before the Ontario Court of Justice, the court, in considering whether a corporation had taken every reasonable precaution after an employee working alone was crushed between a vehicle and a concrete loading dock, stated: “the dock supervisor agreed that there were no written warnings, dismissals or suspensions for breach of safety procedures. He also never told any workers if they were on the ground without a spotter, that they would be disciplined.”

The court concluded that admonitions, if any, were verbal, and “there was no discipline or action if any rules were breached…the supervisor admitted that there was no written censure, no firings, demotions or suspensions. The atmosphere was very laissez faire.” The company was convicted.

A number of steps can be taken to effectively integrate discipline into a corporate health and safety system. Amongst some of the most fundamental steps are the following:

Make it policy: Make a commitment to the consistent enforcement of rules and policies with discipline. Make this clear on safety procedures and rules that are distributed and posted, and in corporate policy.
Make it a fundamental performance expectation for supervisors: Ensure supervisors are aware performance reviews will include assessment of their effectiveness in enforcing crucial health and safety policies. This review should occur at least annually. This should not be confused with merely reviewing accident experience, which is not necessarily reflective of safety policy enforcement.
Give supervisors tools and authority to enforce rules with discipline: Provision of notebooks, pre-printed forms or draft letters for disciplinary reminders, warnings or suspensions can assist. Supervisors should also be given authority to send workers for re-training, or to demote workers not prepared to meet the safety requirements of the department.
Provide training on effective discipline: Supervisors cannot be expected to discipline in an effective and legally appropriate manner without training, particularly where a union may challenge discipline under a collective agreement. Training will assist supervisors to overcome misconceptions about discipline and hesitancy to discipline. Training will prevent errors from being reversed by arbitrators.
Give supervisors time to deal with reminders and discipline: Insist on weekly or monthly group safety meetings. At that meeting, the supervisor should be required to discuss any contravention found in the preceding week, along with regular health and safety meeting topics.
Make sure supervisors document discipline: Require that supervisors keep reports of group safety reminder meetings. Require that they keep notebooks and files of all individual safety reminders or warnings.

Arbitrators versus courts
While many companies and their supervisors can accept that courts expect discipline as part of “due diligence,” others, particularly employers with unionized workplaces, believe the agenda of arbitrators is to remove discipline, wherever possible, even where discipline is for serious safety infractions. This is a myth. Both courts and tribunals embrace the concept that an employer may progressively impose discipline against employees.

Comments from arbitrators considering union grievances of disciplinary responses in the safety context dispel this myth.

The attitudes expressed in these cases are seen consistently in cases decided across Canada, in arbitration decisions and in the few wrongful dismissal cases from non-union workplaces.

For example, in a Manitoba case involving Dominion Malting Ltd., the arbitrator stated:

“The safety of the workplace at all times must be of paramount importance, both to the employer and to the employees…The employer, and each and every employee, without exception, must meticulously comply with every safety directive. That is an obligation imposed not only by the employer, but certainly by the legislation...”

In this case, an employee filed a grievance after he was terminated for failure to follow lockout procedures. It was shown he had been suspended in the recent past for breaching lockout procedures, and it was clearly established that he was trained and knowledgeable about these procedures and the termination was upheld.

Unions regularly go before arbitrators to contest health and safety disciplinary penalties, even though one of the mandates of unions is to seek improvements for a safety infraction. This irony has not been lost on arbitrators.

In a decision involving the Corporation of the City of Brampton, the arbitrator commented:

“The general concern for safety in the work environment is attested to by the vigorous campaign being conducted for safety legislation in which unions are more than disinterested parties. Given this concern and background, we find that the argument of the union that the griever’s discipline be completely eliminated has a hollow ring. It is our view that the company, the union and the employees should be vigilant in their observance of safety requirements.”

With arbitrators and other decision-makers increasingly recognizing employer obligations under health and safety legislation, and comments upholding the importance of disciplinary sanctions becoming part of the landscape, why then, does it seem that so many disciplinary responses of employers are overruled? Cases in which a disciplinary suspension was reduced or a discharge replaced with reinstatement are not uncommon.

A number of principles have been established by decision-makers as preconditions to successful and appropriate discipline. All employers should ensure that their front-line personnel engaging in the disciplinary process are aware of these principles.

Amongst the important principles applied is the expectation that the rule being enforced has come to the attention of the employee affected, through either training and orientation, posting of rules or safety reminders. If there is no sign off or documentation to establish that the affected employee knew or received the rule, the company is unable to realistically continue in its efforts to enforce the rule against the employee in arbitration.

Rules must be consistently enforced. This includes constant enforcement, as well as consistency of treatment between all employees at the workplace. Lack of consistent application is another of the most frequent causes of an employer’s disciplinary response being reduced. For example, in a case involving Alcatel Telecommunications Cable, a worker received a one-day suspension after placing his hands in moving equipment that had not been locked out and was not fully stopped. Evidence was called to suggest that other individuals who had committed serious infractions, such as forklift operators backing up carelessly or running into power panels, or employees attending work under the influence of alcohol, had not been disciplined so seriously.

The arbitrator stated strongly that although the griever had breached his duty to operate the machine in a safe and prudent manner “…the evidence is undisputed that there is a progressive discipline policy and that other individuals who have committed safety breaches have had discipline imposed at the first step i.e. counselling. In this case, there was a one-day suspension imposed. I must accordingly consider whether there was discriminatory treatment against the griever.”

Because of inconsistent application of the progressive discipline procedure, the suspension was reduced to a written warning. Interestingly, the arbitrator noted:

“I hasten to again add that I do not think the one-day suspension was an unreasonable penalty and, as stated earlier, if it was not for the progressive discipline policy which had been followed on a different basis in the past, I would not have reduced the penalty.”

The final most important matter scrutinized by decision-makers is the employer’s decision as to the degree of discipline. The appropriate penalty in any given case will always be reviewed from the perspective of “progressive discipline.” That is because discipline is to be corrective, not punitive, progressively more significant penalties are imposed, with more severe penalties following repeat occurrences. The only permitted exception may be for a safety infraction having significant potential consequences where in some cases it is deemed reasonable to bypass progressive discipline. Decision-makers also review a range of mitigating and aggravating factors.

The imposition of discipline is not a simple task, particularly in a unionized environment where disciplinary decisions are subject to arbitrator’s review, and a series of subtle legal considerations must be applied to issues of when and how much discipline is appropriate.

But it is crucial for employers to reconcile and balance expectations of “due diligence” at the same time as imposing fair and progressive discipline.

Failure to tackle the attitudes, frustrations and confusion of front-line supervisors responsible for discipline will unfortunately lead to problems in the courtroom.

Cheryl Edwards is a partner in the Toronto law firm of Stringer Brisbin Humphrey. A leading occupational health and safety practitioner, she is the author of numerous articles and a contributor to related publications. She may be contacted at (416) 862-1616 or cedwards@sbhlawyers.com.

SIDEBAR

Key aspects of health & safety discipline

You must have the facts: rational and proper decision-making can only be made after considering all of the facts and determining if there is a basis for discipline. This must include gathering information from witnesses and the employee involved. No discipline can be justified if the facts forming the basis for discipline cannot be proven. Retain all evidence of any violation, including physical evidence (objects, damaged property, photographs, videos, sketches), and statements of witnesses and notes from supervisors made at the time of the events.

There must be cause or just cause to discipline: For cause to exist, the misconduct must be intentional, and the misconduct must involve violation of a recognized standard of conduct — set out in a collective agreement or employment contract. If a rule is established, but has not been brought to the attention of employees (or you cannot prove it), there is no cause for discipline. If a standard of conduct set out in a rule is unclear, or sets standards which are unreasonable, the rule itself will be subject to challenge.

The appropriate penalty is ordinarily based on progressive discipline: Discipline is to be corrective, and not intended as punishment, and is therefore imposed progressively. As repeat violations occur, the employee is warned at each step that future incidents will result in more serious discipline. Only a very serious violation can justify a significant suspension for a first offence.
Discipline does not have to be restricted to warnings or suspensions alone: In the safety context in particular, discipline could, and in many cases should, involve retraining of the employee in rules and requirements, removal to other work pending retraining, or a disciplinary demotion to other work for a specified period of time.

The appropriate penalty must take account of aggravating factors: These include: an infraction of a rule with serious consequences (the primary focus of arbitrators is on potential danger as opposed to actual physical harm or accident); prior disciplinary response for a safety matter, particularly the same matter; refusal to acknowledge wrongdoing despite proof; short service with the company.

The appropriate penalty must take account of mitigating factors: These include: prior clear disciplinary record; long service employee; immediate acknowledgement of wrongdoing and preparedness to be retrained or to change behaviour.

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