'The trust relationship was broken and it’s hard to come back from that': lawyer
A British Columbia arbitrator has upheld the firing of a worker in a safety-sensitive workplace after the worker failed to report a hazard she caused and then lied about it.
“The plant was a safety-sensitive environment and the worker had received training, so she knew the how important [safety] was,” says Melanie Samuels, chair of the Employment and Labour Group at Singleton Reynolds in Vancouver. “The trust relationship was broken and it’s hard to come back from that.”
Louisiana Pacific Canada (LPC) is a building materials manufacturer with a plant in Dawson Creek, BC. The worker was hired in January 2015.
The LPC plant was a safety-sensitive workplace, with the collective agreement requiring employees to immediately report to their supervisor any unsafe equipment, practices, or conditions.
The worker, as with all LPC employees, received safety training when she was hired and completed a safety questionnaire under the company’s safety awareness program, including how to raise safety concerns and the importance of watching for hazards.
The worker performed duties in the yard log operator and yard utility positions. On March 19, 2021, she reviewed and signed the standard operating procedures, the latter of which included a direction to “always be alert and aware of your surroundings” and to report any damage to or caused by the bucket loader machine. A failure to do so could result in disciplinary action.
Additional safety training
In March 2018, the worker was placed on LPC’s at-risk monitoring program, which was a non-disciplinary program to help employees who may have put themselves or others at risk of injury. The program included additional training and support for safety issues. She was placed in the program a second time in September 2020.
On March 28, 2022, the worker was working in the plant’s log yard operating the bucket loader. She was scraping off pea gravel that had been spread on the access road and parking lot of the plant during the winter. While using the bucket to scrape gravel, the worker hit a manhole cover, damaging it and creating a hole in the road about three feet wide and more than six feet deep.
The worker didn’t leave the bucket loader to investigate or take any action to identify the safety hazard in the road, nor did she report it.
Later that day, the plant manager noticed the manhole cover lying at the side of the road and half of the broken metal collar for the manhole embedded in the road, sticking up about 12 inches, along with the hole. He placed pylons around the hole and asked a shift supervisor if anyone had reported the damage. The shift supervisor replied in the negative, so he was told to investigate.
When the worker arrived the next day, she saw the pylons in the road and didn’t know what had happened. She told the shift supervisor she didn’t know anything about it, which surprised him because he knew she had been operating the bucket loader on the road and he thought it was obvious that she had caused the damage. In a written account of her shift, the worker said there was an incident earlier that was a potential safety hazard, but she fixed it and hadn’t noticed anything else. She suggested that the manhole might have been already broken and she pushed it out of the way and filled the hole with gravel while scraping, but she said that she didn’t feel the loader jerk or stop.
Employer investigation
On March 30, the worker’s supervisor told her that he had been instructed to put her on paid leave pending investigation. The worker told him that she didn’t notice hitting the manhole cover.
LPC found surveillance video of the incident that showed that the worker backed up and lifted the bucket to see better in front of her, then stopped beside the manhole cover for 10 seconds to look out the window. The bucket loader jostled significantly and a larger-than-normal cloud of dust was stirred up. The video also showed a large black object turned over in the bucket.
On April 6, LPC management met with the worker and union representatives. They didn’t share the video and didn’t ask for more information. Instead, they gave the worker a termination letter stating that she had broken the manhole and didn’t report it to her supervisor as required by the safety program. By leaving the hole open, she caused “a significant safety hazard,” and her claim of being unaware of the damage was dishonest and “a clear neglect of your employment responsibilities,” the letter said.
“[LPC] did everything right - they were thorough and they gave her full opportunity to respond, which is always critical,” says Samuels. “And then the issue was really about the dishonesty – [LPC] gave her an opportunity to explain and she denied it. I don't think the employer could be faulted for anything they did in this situation.”
The union grieved the termination, contending that LPC didn’t establish on “clear, cogent, and convincing evidence” that the worker knew of the damage and intentionally didn’t report it. It also argued that the video didn’t clearly show that the worker knew something had been damaged, and at any rate she wasn’t shown the video and given an opportunity to explain it or respond to the allegations.
Previous discipline
The union also argued that a five-day suspension in July 2021 for being absent without leave and a one-day suspension in August 2020 for failing to report her absence could be considered as they occurred within 12 months of each other, with the latter less than 12 months before this incident, but all other discipline had been removed from the worker’s file due to the collective agreement’s 12-month sunset clause.
The worker testified that nothing unusual happened that day and the bucket loader only jostled in the same way it usually did, and it was unreasonable to expect her to get out and investigate for just a jostle. She had no explanation for why she stopped beside the manhole.
The arbitrator found inconsistencies with the worker’s account, as she initially said she didn’t feel anything but later testified that the bucket loader was jostled and she felt something. In addition, her actions in the video were consistent with her feeling an impact and checking to see what she had hit, said the arbitrator, while acknowledging that the worker wasn’t asked about stopping beside the manhole during the investigation.
The arbitrator noted that, had the worker hit the manhole and continued on her way, her claim that she didn’t know about the impact would be more credible. However, the video established a distinct impact and her actions indicated that she knew something happened, the arbitrator said.
The arbitrator determined that LPC established on clear, cogent, and convincing evidence that the worker saw the damage and didn’t take action to make the area safe or report it. Although she wasn’t given an opportunity to see the video at the termination meeting, the worker knew what the company was investigating and had a chance to explain before then, the arbitrator said, noting that the worker continued to deny it even after seeing the video at the hearing.
Safety treated seriously, consistently
A key factor that enabled LPC to justify dismissal was that the company was able to show that it consistently took safety seriously, says Samuels.
“[LPC] did everything right by being consistent with their approach to safety issues followed by a thorough investigation of what happened,” she says. “They looked at video footage and they interviewed the worker and any other witnesses, so I think they did a thorough job of investigation - the arbitrator did too, because they upheld the termination.”
Because the plant was a safety-sensitive environment, the worker received extensive safety training, she was in the at-risk monitoring program twice, she was dishonest in the investigation, and she failed to report a safety hazard she created, the arbitrator found that termination was appropriate.
“This misconduct, on its own without any previous record, would have been enough because of the serious safety risks that it created,” says Samuels. “And because she was dishonest and the union really didn't give any real mitigating circumstances in which to lessen the discipline, the worker still would have been in trouble [without previous discipline].”
