Employee failed to follow reporting procedure but dismissal was too harsh for first-time offender: Board
The firing of an Ontario warehouse employee for failing to report a warehouse accident was too harsh of a punishment, the Ontario Arbitration Board has ruled.
Roberto Cavan was hired in 2001 by Sysco Food Services, a food product distributor in Toronto, to be an operator of mobile equipment such as forklifts and pallet trucks in its Mississauga, Ont., warehouse. He was licensed to operate such machinery and regularly took recertification training during his time with Sysco. As part of the recertification, Cavan acknowledged he had received information about the equipment and its safe operation, including safety legislation and safe work methods. Sysco’s policy and Ontario health and safety legislation stipulated that industrial steel storage racks, such as those Sysco used to store pallets of product, must be maintained in good condition and had to be emptied if damaged. Employees were prohibited from operating any equipment that could endanger others and required to report any defects or unsafe conditions in equipment.
Cavan didn’t have any discipline on his work record, though in early 2011 his manager spoke to him twice about the unsafe operation of a forklift. However, this was not officially documented and was not put in his file.
Employee didn’t initially own up to accident
On April 14, 2011, Cavan was operating a forklift in the freezer area of the warehouse, moving product from high storage racks to staging areas where other employees could process it for shipping. He had been thinking about the expense of his daughter’s dental hygienist training, for which he had been working overtime and taking recent extra shifts in order to pay for.
Midway through his shift, Cavan finished one assignment and drove his forklift through a tunnel to another section of the warehouse, where his next assignment awaited him. When he came out of the tunnel he turned a corner to the aisle he was working in, he was going too fast and crashed into the side of one of the storage racks. A loud “bang” reverberated through the warehouse and the base of the rack was dented. Cavan elected to continue with his work and completed his shift without reporting the accident. The next day, he worked another shift with the same forklift.
Word of the accident spread through the warehouse, as many employees had either seen or heard it. One employee who was on the joint health and safety committee showed the site of the accident to a supervisor and the damage to the rack. Another employee then reported that Cavan was responsible. However, the damaged rack wasn’t segregated and its product was not removed until several hours later. Another four days later, the rack and its product were once again made accessible for employees, though it was estimated it wouldn’t be repaired for two weeks.
On April 17, 2011 — his second shift after the accident — Cavan’s manager advised all the employees on duty of the damaged rack and reminded them of their duty to report such accidents. After the meeting, Cavan admitted to the manager he was responsible and filled out an accident report. He wrote that he was driving at “a slow speed” and the brakes didn’t work properly, causing him to hit the rack. Cavan was suspended pending an investigation.
Sysco’s HR manager interviewed Cavan, who admitted he “made a mistake.” However, he maintained something had gone wrong with the brakes and he did report the accident to the health and safety representative. He stuck to this story in a second interview.
Sysco didn’t believe Cavan’s story and terminated his employment on April 26, 2011, for failing to report the accident and continuing to operate the forklift, placing “your safety and the safety of your co-workers at risk,” as well as being “evasive and not candid during our investigation.”
Cavan acknowledged that he “screwed up everything” and he didn’t own up his conduct originally because he was afraid for his job and had to support his family and pay for his daughter’s education. The union filed a grievance, claiming termination was too harsh of a punishment for an employee with a clean disciplinary record who acknowledged his wrongdoing and vowed not to repeat it if given another chance.
The board consulted a Sysco engineering report that stated the racks were “prone to being damaged by lift trucks,” which seemed to indicate the type of accident Cavan was in was not unusual. It found the collision was likely the result of “inadvertent negligence” caused by driving too fast in an attempt to get his work done. This was not serious negligence that provided just cause for dismissal, said the board.
The board found Cavan’s failure to report the incident exacerbated his misconduct, as it could lead to unsafe working conditions. It was also a violation of health and safety legislation. However, Sysco’s reaction once it found out about the damage showed it didn’t think it was a dangerous situation. Cavan may have thought the same thing, said the board.
“I cannot conclude that it would have been reasonable for (Cavan) to suspect that the damage he caused created a situation of imminent or obvious harm,” said the board. “It did not pass the line of constituting such reckless disregard for the safety of himself and his co-workers to constitute just cause for summary dismissal.”
