‘If it's a kind of hazard that occurs frequently… you should probably have a policy that deals with it’: lawyer
An employer didn’t have just cause to fire a worker for an alleged safety breach stemming from actions that were a common practice by employees and weren’t prohibited by any policy, an Alberta court has ruled.
The worker, now 47, started working for Fort McKay Strategic Services (FMSS), a company providing services for the oilfield industry in Alberta, in 2008. His position was fuel and lubricant technician, responsible for the maintenance, upkeep, and performing tasks with vehicles and equipment.
The worker had one instance of discipline on his record for failing to properly store tools in his vehicle in 2016.
FMSS was contracted by Canadian Natural Resources Limited (CNRL) to provide services at a mine north of Fort McMurray, Alta. On June 7, 2020, the worker’s team leader directed the worker to assist another FMSS employee refuel a washcar generator. However, there had been a lot of rain recently, causing significant water accumulation on the mine’s roads. The dispatch team informed the worker that water accumulation had blocked a road leading to the washcar generator, so the worker had to take an alternative road. He was driving a truck owned by CNRL.
Inquiry about hazards
The worker radioed his co-worker to ask about the condition of the alternative road, and the co-worker told him there was some water but he had driven through it the previous night. There had also been no mention of unsafe conditions at the “toolbox” meeting at the beginning of the shift.
When the worker encountered the water on the alternative road, he put the truck into four-wheel drive and tried to drive slowly through the water. However, it was too deep and water started seeping into the truck’s cab. The worker put the truck into reverse, but the engine stalled.
Another employee with a vehicle with a higher clearance was eventually able to drive into the water and pick up the worker, who had been stranded on the truck. The worker completed an incident report and post-incident drug and alcohol testing, which came back negative.
FMSS held an investigation interview with the worker and placed him on an unpaid suspension pending the investigation’s completion.
CNRL’s truck was damaged and out of service for 61 days. CNRL didn’t seek reimbursement for repair expenses and, according to the evidence, the “engine repair” light had been on before the worker used the truck.
Termination for cause
On June 18, FMSS terminated the worker’s employment for breaching the company’s “no tolerance” policy for safety breaches. The company said that the worker had failed to identify the hazard created by the water, failed to operate in accordance with road and weather conditions, failed to report the unsafe conditions, and failed to exercise “good judgment and common sense” by putting his health and safety and that of others who had to rescue him at risk.
The worker commenced an action for wrongful dismissal seeking summary judgment for damages in lieu of reasonable notice of 12 months, unpaid wages for his suspension during the investigation, and punitive damages.
The worker and FMSS agreed that it was common for water to accumulate on the mine roads when it rained and FMSS employees generally tried to drive through it – the team lead said that usually, he would start by driving slowly into the water and monitor how high it was on the tire, while the co-worker had driven through the same water the previous evening.
FMSS opposed the application for summary judgment and maintained that it had just cause for dismissal. The company also filed a counterclaim for profit losses of more than $19,000 allegedly resulting from the truck being out of commission.
The court found that the facts regarding the worker’s employment and termination weren’t in dispute and that the worker was dismissed without notice, so a summary judgment was reasonable.
No workplace policy
The court found that the evidence showed that driving through water on mine roads was a common practice for FMSS employees and there was no specific policy prohibiting it. In addition, the worker reported that he approached the circumstances cautiously by checking with the co-worker if the water was safe to drive through and then driving slowly into it. The worker identified the accumulated water as a hazard and assessed it, said the court.
“The court was critical about blaming the worker for driving into the water but, based on the evidence, it was a pretty common occurrence for employees to drive their trucks into the water,” says Stephen Torscher, a labour and employment lawyer at Carbert Waite in Calgary. “If this is something that happened quite often, [FMSS] ought to have had some policy or procedure in place for how to deal with those kinds of situations, but they didn't.”
The court also noted that the “check engine” light had been on in the truck, so FMSS didn’t even know for sure if the worker’s actions were what caused the truck to stall.
As a result, the court found that the evidence didn’t support FMSS’s claim that the worker’s actions constituted serious misconduct justifying dismissal.
“This was an employee who had a long history of employment with [FMSS] with only one previous incident on his record,” says Torscher. “The surrounding circumstances, and the fact that other people drove through the wet road both before and after the worker, added to the circumstances that suggested this wasn't such an egregious incident that required termination.”
Progressive discipline policy
The court also noted that FMSS didn’t follow its own disciplinary policy in handling the worker’s termination. The policy outlined specific procedures, including a meeting with the employee and supervisor after the investigation to allow the employee to tell their side. The policy also outlined steps of progressive discipline, starting with a written warning and probation, along with consideration of the employee’s record and actions compared to other employees.
Regarding mitigation, the court found that FMSS didn’t establish that the worker failed to take reasonable steps to secure alternative employment or that he would have found comparable work had he searched for it. The worker applied for two fuel and lubricant technician roles, but most of them required a class of driver’s license that he didn’t have – and would cost $9,000 to obtain. The worker also said that the pandemic affected the number of job postings and he had to take on childcare responsibilities in 2021. He didn’t find employment until 16 months after his termination, but FMSS didn’t provide evidence of any comparable positions that were available, the court said.
The court determined that the worker was entitled to 10 months’ notice and ordered FMSS to pay the worker $92,416.40 in lieu of notice. The company was also ordered to pay $2,622.45 for unpaid wages during his suspension, as FMSS didn’t have the authority to suspend him without pay during the investigation, the court said.
“If it's a kind of hazard that occurs frequently and you want to be able to rely on somebody breaching a standard for not dealing with the hazard properly, you should probably have a policy that deals with it, what to do when a situation like that occurs, and reporting the hazard – but there was nothing in place, and that made it more difficult for the employer to rely on just cause for termination,” says Torscher.
The unpaid suspension was also problematic, as generally employers have to pay an employee during such a suspension, according to Torscher.
“It's pretty typical to suspend an employee pending the outcome of an investigation, but unless you have the specific authority to suspend without pay, the suspension ought to be with pay,” he says. “Otherwise, you risk having to pay additional damages or potentially risk a constructive dismissal if the matter goes on for too long and the employee hasn't been paid.”
No punitive damages
The worker’s claim for punitive damages was dismissed, as the court found that FMSS’s conduct didn’t meet the threshold of malicious or outrageous conduct.
FMSS’s counterclaim for alleged loss of profit due to the truck being out of service was also dismissed, as the court found that the company didn’t provide sufficient evidence to establish that the worker’s actions caused the damage, or the amount claimed.
The case is a good reminder for employers to review their policies to ensure they cover all the different circumstances that could arise, and ensure that they’re conducting their investigations thoroughly and fairly, says Torscher.
“By all accounts, employees drove through wet road conditions all the time, so if [FMSS] was concerned about the dangers of doing so, it should probably make sure there's a policy and training in place that addresses those situations,” he says. “And ensure that a progressive discipline policy is in place to make sure that the steps are followed - that makes the decision on whether to terminate for cause easier to justify if the matter is challenged in court.”
