Elevator worker in BC didn't report the incident or complete paperwork in timely manner
A British Columbia arbitrator has upheld two warnings issued to a worker for failing to report a workplace accident in a timely manner and not completing essential paperwork related to it.
Kone is a company that manufactures elevators based in Mississauga, Ont. It had a health and safety policy requiring employees to “promptly report all unsafe acts, unsafe conditions, incidents, near-misses and hazards” in the workplace. The company also had a policy setting set out expectations and examples of misconduct that may result in disciplinary action up to and including termination, including “insubordination or other disrespectful/insolent conduct.”
An incident management policy provided guidelines for reporting and investigating work-related incidents, which included reporting all work-related incidents to supervisors or managers immediately and co-operating with investigations.
The nature of elevator installation and maintenance was safety-sensitive, so Kone placed a priority on safety. Is also faced potential penalties if workplace incidents weren’t reported to WorkSafeBC, including an increase of workers’ compensation premiums.
Trained on safety policies
The worker was a helper in the elevator construction industry who started working for Kone in January 2019 in its Kelowna, BC, office. He regularly participated in safety training and understood the expectations and obligations in the policies.
On March 17, 2022, the worker was at a jobsite in West Vancouver installing an elevator with two elevator mechanics. He was lifting a cable spool weighing between 400 and 600 pounds with one of the mechanics when the mechanic dropped his end of the spool. The worker tweaked his back and was in a lot of pain. He left to perform lighter work with wiring for the rest of his shift.
The worker didn’t report the incident at the time because he didn’t think he was hurt badly, despite the pain and the fact that a near-miss was supposed to be reported under the policies.
The worker needed help to his van, but he was able to drive home. However, the next morning he fell getting out of bed. He called one of the elevator mechanics to say that he wouldn’t be into work. He also called his supervisor, but the voicemail indicated that the supervisor would be away for a few days, so he left a message.
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Hospital visit after workplace accident
The worker went to the hospital. According to the worker, he claimed he couldn’t use his legs and lost control of his bowels. He also said he was by himself because of COVID-19 and he wasn’t able to use his cellphone.
However, the discharge report indicated that the worker denied any incontinence and he had no loss of power to his right leg, as he took frequent trips outside to smoke and stood beside his stretcher for much of the time.
Later that day, the worker called the elevator mechanic again, who told him to call the supervisor’s boss or the office. Neither had the number for the supervisor’s boss, so the worker tried to call a union representative. He was unsuccessful and didn’t try again until the following Monday, three days later. The worker didn’t try to find another supervisor or check the company directory. Although he and others sometimes worked overtime on weekends, he didn’t consider the weekend as working hours.
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Supervisor told of incident
That Monday, March 21, a substitute supervisor visited the worksite and asked where the worker was. He was told of the incident and that the worker had left a voicemail for the absent site supervisor.
The supervisor made a comment that the worker might have hurt himself drinking on the weekend, which one of the mechanics repeated to the worker. According to the supervisor, he made no such comment and didn’t question the worker’s injury.
The same day, the worker obtained the supervisor’s boss’ number and sent him an image of a doctor’s note that sated he was unable to work for two weeks due to “illness/injury.” He didn’t provide any further details.
The substitute supervisor called the worker to follow up and the worker said he was at the hospital for treatment. The supervisor wanted to bring him incident reporting paperwork – including an accident investigation report, a functional abilities form, and a return-to-work form to be filled out by a physician - but the worker said he couldn’t have visitors because of COVID-19. The supervisor emphasized that the forms were urgent, so the worker said to send it to the union hall or his house, as he wanted communication to go through the union. Kone sent the forms to his house.
The worker contacted WorkSafeBC to start his workers’ compensation claim and contacted the union to file a complaint about what the substitute supervisor said about him. However, he didn’t complete the injury reporting forms.
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No additional information from worker
Two days later, Kone hadn’t received the forms back or any additional information. On March 23, Kone issued the worker a warning for failing to report the workplace injury. The next day, it issued a second warning in response to the worker’s insistence that Kone only deal with him through the union and his failure to complete the essential paperwork.
The union grieved both warnings, contending that the worker did nothing to deserve discipline.
The arbitrator found that the worker’s injury was significant, given the sudden and significant pain he experienced and his need to go to the hospital. In addition, it’s important for such injuries to be reported so the employer can investigate and take measures to avoid them in the future, the arbitrator said.
The arbitrator also found that the worker knew his direct supervisor was away, so he had an obligation to report the injury to another supervisor or ask the mechanic to do it on his behalf. In addition, the doctor’s note he sent provided no details on the nature or extent of the accident or his injury. This was a failure to report his accident in a timely manner as required by the policies, said the arbitrator.
The arbitrator also found that the forms were delivered to the worker and he could have sought help from the union or the company if he needed it. The arbitrator noted that the worker was able to contact WorkSafeBC and the union, but not to complete the forms that were necessary for Kone to report the incident and plan his return to work. This constituted insubordinate conduct deserving of discipline, said the arbitrator.
Given that both instances of misconduct were deserving of discipline, the arbitrator determined that the warnings were not excessive and dismissed the grievance. See Kone Inc. and IUEC, Local 82 (Kulczycki), Re, 2023 CarswellBC 2094.
