Employer skipped a few steps in its policy; not all incidents were disciplinary
An Ontario company unjustly dismissed a worker with a lengthy disciplinary record because it didn’t follow its own progressive discipline policy, an adjudicator has ruled.
Michael Dominato was employed by Windsor Disposal Services Limited (WDS), a Windsor, Ont.-based waste management company, as a front-end driver. WDS hired Dominato in February 1997, and his position involved driving to customers’ locations and emptying large metal refuse bins into his truck. The truck had forks at the front that were used to pick up the bins, lift them above the cab and dump their contents into a large container section behind the cab. After emptying, the bins were lowered back onto the ground.
WDS had a progressive discipline policy that featured verbal warnings as a first step, followed by escalation to written warnings, suspensions without pay, and finally termination. Health and safety violations started at the second step, and “certain infractions of a more serious nature may start with an advanced level of progressive discipline at the discretion of the company.”
On May 5, 2011, Dominato was distracted while driving his truck and hit a pole, bending a ladder and breaking a clearance light. The estimated cost of the damage was between $4,000 and $7,000. WDS suspended Dominato for two days without pay due to the high cost of the accident and the company’s concerns that he was distracted in the first place. He was also informed that further incidents would be subject to disciplinary action up to and including dismissal.
In the fall of 2011, WDS received four complaints from a customer that he wasn’t replacing refuse bins where they belonged after emptying them. He received verbal warnings at first and, after the fourth complaint, he was given a report on the discussion about them and told similar incidents in the future would lead to more discipline. Dominato admitted he didn’t place the bins in the right spot, but said there was little space in which to manoeuvre, he only misplaced it two or three times, and he was “only human.”
Some time passed without event until June 13, 2013, when Dominato`s truck was hit by a car while backing out of an alley into the street. The police gave him a ticket for failing to yield to traffic — which Dominato told WDS he would dispute — and damage to the truck was estimated at $1,000. Less than one month later, on July 6, Dominato was completing a job at a customer’s location when he hit the wrong button, opening the truck’s tailgate and dumping garbage onto the customer’s parking lot. He tried cleaning up as much as possible, but it required power washing of the lot, which cost WDS $400. Dominato acknowledged he pushed wrong button and acknowledged fault for the incident.
WDS issued a report about both incidents, telling Dominato it was his responsibility to be “in complete care and control of the vehicle at all times. Both incidents were deemed preventable and WDS warned him that any more similar incidents would be subject to discipline up to and including dismissal.
The month following the garbage-dumping incident — Aug. 24 — Dominato was involved in an accident while driving his truck. He was stopped at a traffic signal waiting to turn left on a four-lane road. When the light turned green, he moved into the intersection to turn, but a car coming the other way ran the red light. Dominato swerved to the left to avoid the car, causing him to drive up onto the median and knock down the traffic signal pole. The damage to the truck was $850 and more than $13,000 for the traffic signal pole, which the municipality invoiced to WDS. Dominato signed the acknowledgement of the incident report but denied responsibility for the accident, saying it was better to hit the traffic pole than the other car. There was no formal warning or other discipline.
On Nov. 11, 2013, Dominato was driving his truck down an alley when the door on the tool box opened and caught on a guard rail. Dominato had to keep driving to get free, resulting in $150 damage to the tool box. WDS gave him a written warning that he didn’t judge the area correctly, causing damage, and that further incidents would lead to disciplinary action up to and including dismissal. Dominato denied responsibility, saying he checked the tool box at the start of his shift.
It wasn’t long until Dominato was involved in four more incidents, all in January 2014. The first involved him using a bag of garbage to prop gates open while emptying a bin and then leaving the bag behind and the gates open. Dominato said it was necessary to prop the gate open to access the refuse bin but acknowledged he forgot to remove the bag.
The second incident involved Dominato leaving a bin too close to another recycling one that prevented the lids from closing properly. A second truck was dispatched to move them, adding a cost to WDS. Dominato acknowledged that it was possible he placed his bin too close, but it was also possible the driver of another truck that had emptied the other bin had placed that one too close to his.
Also that month, Dominato by-passed an assignment, claiming snow hadn’t been cleared away from the bin, but the customer reported the snow had been cleared previously; and a customer complained that he had placed their bin down in contact with a grease bin belonging to a different company, resulting in a complaint and a $500 repair fine. Dominato denied causing damage to the grease bin.
WDS suspended Dominato for two days without pay following the four January 2014 incidents.
On Feb. 18, Dominato reported to his supervisor that his truck was caught on wires and required assistance. He said the truck was higher than normal due to the large amount of snow on the ground and the wires were lower because of snow on them. WDS had the wires disengaged from the truck at a cost of $1,900 and the damage was $500. He was told his performance would be monitored and similar incidents would lead to “immediate suspension and/or termination.”
On Sept. 11, Dominato’s truck damaged a refuse bin and building staircase near the bin. When the building manager called, WDS investigated and recorded the damage. Dominato denied it was his truck but his route sheet showed he was in the area at the time of the incident. WDS determined Dominato caused the damage and terminated his employment on Sept. 17. Dominato filed an unjust dismissal complaint.
The adjudicator found that there wasn’t sufficient evident to link him to the damaged grease bin in January 2014 or the damaged staircase in September 2014 — meaning the latter couldn’t be used as a culminating incident. This left Dominato’s disciplinary record with two-day suspensions in May 2011 and January 2014, and eight other written warnings between November 2011 and February 2014. While this constituted a large number of incidents, the fact was that WDS didn’t follow its own progressive discipline policy, said the adjudicator.
Even if the staircase damage was Dominato’s fault, his last discipline — for getting his truck caught on overhead wires — was a written warning. Progressive discipline meant a suspension for the September 2014 incident, not dismissal.
“After a series of written warnings, Mr. Dominato was issued a two-day suspension for the incident of Jan. 20, 2014. Had WDS been applying progressive discipline, Mr. Dominato should have been assessed a suspension of three to five days for the incident of Feb. 18, 2014,” the adjudicator said. “By regressing to a written warning, a pattern it also followed in 2011 subsequent to a two-day suspension, it is not surprising that Mr. Dominato did not expect his employment to be in jeopardy and perceived that WDS was merely going through the formality of creating paperwork.”
