Employee's misconduct was serious but termination was out of whack with employer's handling of misconduct by other employees
The termination of an Ontario machinist was disproportionate to his misconduct, despite the seriousness of his safety violation, the Ontario Superior Court of Justice has ruled.
John Plester worked for plastic manufacturing company Polyone in Orangeville, Ont., for 17 years. Over the years, Plester worked his way up to the position of line supervisor, which involved supervising several employees running the manufacturing of plastic pellets. Plester had a few minor instances of discipline, but nothing serious.
Polyone emphasized safety at its workplace, as heavy machinery and chemicals were used in its manufacturing process. It provided regular safety training to employees and had “cardinal rules” that included the requirement that any machinery being worked on should be locked out and tagged so it couldn’t start up unexpectedly. Another rule required employees to report any safety violations, no matter how minor.
On Sept. 23, 2009, Plester was doing paperwork in the supervisor’s office when he heard a particular machine, called a dicer, wasn’t running. He went out to help get it going again. Two of the employees working at the time were men Plester didn’t get along well with.
Plester shut off the dicer and flipped the switch of the machine’s dryer to test it. He then vacuumed plastic dust out of the dryer’s bottom. However, as he did so, one of the employees told him he had to lock out the dryer before opening it. Plester was annoyed because he felt the two employees weren’t helping, and he told them he didn’t have to because he was just vacuuming the bottom. When he was done, he realized one of the others had locked out the dryer. According to the employees, Plester told the others to get the lock off and get to work, acting upset and harsh towards them.
Plester was embarrassed that he had forgotten to lock out the dryer, but didn’t want to admit it. He felt he needed to “get his head around” what he did and didn’t report it to the health and safety co-ordinator. However, one of the employees called another supervisor to report it.
The next morning, Polyone interviewed Plester and the employees. Plester was sent home after his interview and, a week later, he was told he was being dismissed for wilful misconduct, which eliminated his right to statutory notice of termination.
The court found there was no question Plester’s violation of the safety protocol was serious. Failure to lock down the dryer on the dicer could have caused serious bodily harm if someone flicked the power switch while he was vacuuming it. The employees and even Plester himself were shocked at what he did, and Plester’s reason for not immediately reporting it was that he knew he would be in serious trouble, said the court.
The court also found Plester’s position as a supervisor was another concern for Polyone. Failure to follow the “cardinal rules” increased the chance they wouldn’t be followed by other employees, after his example.
However, it was found that previous instances of an employee failing to lock out a machine did not result in termination but instead one-week suspensions. As a result, Plester’s dismissal was not consistent with established discipline for such misconduct and was not proportional to normal practice by the company, said the court. The court also noted that Plester didn’t plan to violate the rules. and his misconduct was not wilful. Polyone was ordered to pay Plester 14 months’ salary in lieu of notice.
