'If it's not deliberate, then termination is probably too severe of a consequence'
“Even if somebody is on a last-chance agreement, it doesn't take away from the three-part analysis to assess whether or not there is cause for discipline and if there is, if termination is appropriate.”
So says Timothy Mitchell, partner at McLennan Ross in Calgary, after an Alberta arbitrator reinstated a worker who was fired for violating lock out/tag out (LOTO) procedures in a safety-sensitive workplace.
Shaw Pipe Protection is a pipeline services company providing pipe coating products in Camrose, Alta. The company’s health and safety policy outlines LOTO procedures and energy control procedures (ECP) for equipment to control hazardous situations. Shaw took a zero-tolerance approach to LOTO violations, given the risk of serious injury.
Zero-tolerance policies
Zero-tolerance policies can serve a purpose, but they can be a double-edged sword, says Mitchell.
“Fundamentally, the purpose of a zero-tolerance policy is that you're trying to identify to employees the seriousness of a violation of a rule which will result in the termination of employment,” he says. “The problem with them from a discipline analysis – which involves looking at an assessment of rehabilitation and continued employment – is that it turns out to be quite arbitrary, and we've been told time and time again by arbitrators that you have to engage in that contextual analysis.”
The LOTO procedure required authorized employees to place the keys to devices in a lock box and to apply their locks to the lock box. Once the device was isolated, a “bump test” was performed that involves trying to turn the equipment on to confirm that it is off. Before the task is performed, a designated person completes a field level assessment and issues a permit to be signed by all involved authorized employees.
The 62-year-old worker was a utility labourer hired in 2012. He had no discipline until April 2021, when he received a three-day suspension for altering a safety device without isolating the scene or reporting it to a supervisor. He also was put on a last-chance agreement that stated that if he violated any of the conditions, his employment would be terminated.
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Directed to sign LOTO sheet
On Aug. 19, 2021, the worker was assigned to a grinding rack, where he was grinding imperfections on pipes. A co-worker issued a permit as a designated person to do a changeover at the powder booth – where a powder coating was sprayed onto pipes – and asked the worker and four other authorized employees to sign the LOTO sheet and clean the coating on the tires in the booth. The worker had never worked in the area before and had not been trained on the ECP procedures for the powder booth.
The worker signed the permit and placed his lock on the key box. There was no one in the powder booth when he arrived and the work was finished, so he went for a coffee break. A co-worker noticed that a piece of equipment in the powder booth was locked into the “on” position, so he told the worker the LOTO was wrong and reported it to management.
Shaw management launched an investigation and determined that seven employees had breached safety policies and procedures.
In an interview with management, the worker explained that the work had already been done when he arrived. He also said that he had not received any training and hadn’t seen a LOTO procedure at the powder booth.
The worker said he had signed the LOTO sheet at the powder booth and did his part by putting his lock on the lock box, but he didn’t think he needed to observe a bump test because no one was at the powder booth when he arrived and the job appeared to be done.
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Terminated for safety violation
On Aug. 25, Shaw informed the worker that his employment was being terminated for breaching the last-chance agreement with his involvement in a faulty LOTO procedure that “greatly risked” his own safety and that of others. The termination letter also stated that he had failed to verify that the permit described the proper ECP before signing it.
One other employee directly involved in the breach was dismissed, two received five-day suspensions and last-chance agreements, and three were given written reprimands.
The union grieved the worker’s dismissal, arguing that the worker did not knowingly or intentionally violate any rules or policies. He had followed directions and was not involved in the completion of the powder booth cleaning, as it was finished by the time he arrived, the union said.
The arbitrator noted that the evidence indicated that it was the responsibility of the designated person to review the ECP on permits, not other authorized employees involved in a LOTO procedure. In addition, the worker had not received training on the powder booth or ECPs for the equipment, so his failure to verify the ECP was not a violation of any policy or procedure, said the arbitrator.
However, the arbitrator found that the worker was properly trained and was experienced in the standard LOTO procedure, so he should have known that he was violating LOTO procedures by signing the permit and putting his key on the key box when no one else was present. He should have located the designated person to confirm that an assessment and bump test had been performed, and it wasn’t reasonable for him to assume that he didn’t have to follow LOTO procedures because someone else signed the permit, said the arbitrator in determining that the worker violated LOTO policy and deserved discipline.
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Zero-tolerance policy conflicts with just-cause standard
The arbitrator found that Shaw’s zero-tolerance approach to policy violations conflicted with the just-cause standard in accordance with “collective agreement provisions, arbitral authority, and the provisions of the Alberta Labour Relations Code.”
The arbitrator also found that the worker’s prior suspension and last-chance agreement were strong factors in the termination decision, as opposed to the seriousness of the violation.
However, the arbitrator found that, given the circumstances at the powder booth, the worker’s misconduct was less serious than most. It wasn’t premeditated or repetitive and there was no intention to ignore LOTO procedures. It was primarily negligence from a situation in which the worker didn’t think he was violating policies, said the arbitrator.
“The jurisprudence dealing with LOTO violations establishes that the intention of the employee is a significant factor in whether there is cause for termination or lesser discipline, says Mitchell.
“It ultimately comes down to an assessment of rehabilitation of the employee – if you have an employee who is engaging in serious violations of [LOTO] by intentionally altering the permits or deliberately taking steps to circumvent necessary safety protocols, then termination will be the right approach,” he says. “Here, the employee came upon the area that had been locked out and was there alone, but he didn't engage in in a hazard assessment or a bump test – but it was because four other people had already signed off on [the permit] and he presumed that that had occurred.”
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Worker’s intention key to level of discipline
“[The arbitrator] found that the employee, who had fairly long service but with a bit of a checkered past, had not deliberately violated the safety protocols,” adds Mitchell. “Instead, he was careless and so, from a rehabilitation standpoint, the arbitrator followed that line of case law that stands for the proposition that if it's not deliberate, then termination is probably too severe of a consequence.”
Given the worker’s age, nine years of service, his work record, and “his relationship of mutual respect with the supervisor,” the arbitrator found that there was a low probability that this type of violation would happen again. A 30-day suspension would be more appropriate and would still help to deter others from being careless with safety procedures, said the arbitrator in setting aside the termination in favour of the suspension.
The decision emphasizes the importance for employers to not simply rely on general LOTO policies and train employees only on them, according to Mitchell.
“Also, ensure that you are providing specific training on the ECPs associated with different pieces of equipment that an employee has the potential to be involved in,” he says. “I think the arbitrator may have taken a different view if the employee was aware of what the ECPs were [for the powder booth] –the mitigating factors and the propagating factors may have swayed him more in favour of more severe discipline or termination.”
