‘When an employer shows that it genuinely takes safety seriously… it shows that it’s not being arbitrary,' says lawyer discussing Alberta decision
An Alberta arbitrator has upheld the termination of an industrial worker following a significant safety violation that led to a workplace fire.
JBS Food Canada ULC operates a large beef processing facility in Brooks, Alta., with more than 3,000 employees. It hired the worker as a general maintenance worker in 2018.
JBS took safety seriously, as the facility contained a significant amount of machinery, work at heights, and welding by maintenance workers. Employees weren’t allowed to work until they completed safety training on numerous topics, including fire prevention and control. Supervisors also held daily tool-box meetings that addressed safety concerns, as well as one-on-one safety discussions, and the company had a program for employees to volunteer as safety advocates in the workplace.
Fire safety was a particular concern at the plant, as a similar plant elsewhere had experienced a major fire that shut it down for several months. The area where the food products were packed in boxes was particularly high risk, as it contained many cardboard and plastic boxes that were highly flammable.
JBS had a process for “hot work” permits, which were required when maintenance workers did any welding work. Hoses and water had to be available and combustible materials had to be covered with fire-resistant tarps during the hot work. One employee always had to be on “fire watch,” monitoring the site for sparks, ignition sources, or other fire hazards. The fire watch had to be maintained for 30 minutes after the hot work was completed, with an employee remaining at the site for monitor for smouldering fires. The site also had to be checked again two to three hours later.
Cardinal safety rule
Improper execution of a hot work permit was one of the cardinal safety rules in the JBS employee handbook, and the company’s disciplinary policy stated that “a willful and egregious act” that violates safety policies would be reviewed with the potential of discipline “up to and including termination.”
The worker received hot work training, annual safety training, and had a copy of the employee handbook. He was considered a good employee with no previous discipline.
On Nov. 27, 2022, the worker was assigned to be a fire watch during a welding project near the boxing area. The worker filled out a hot work permit that was signed by a supervisor and stated that the worker had acknowledged the fire watch procedure.
The job was within the view of surveillance cameras and the video was recorded. During the job, the worker placed a plastic liner on a conveyor belt, but a short time later he had to remove it because it caught a spark. A few minutes later, he placed a plastic garbage bag in the area.
Once finished, all three employees working on the assignment inspected the weld through sight and smell before going on a break. Three minutes later, it was clear on the surveillance video that a fire was burning at the site. It continued to burn for 24 minutes, causing some damage to equipment, until another employee put it out with a water hose.
Health and safety, disciplinary investigations
The fire was reported and JBS commenced investigations for plant safety, occupational health and safety, and what discipline would be necessary.
The worker was interviewed and said that they hadn’t seen any smoke, so they went on a break. He admitted that he didn’t stay at the site for 30 minutes and also acknowledged putting a plastic liner on the conveyor belt instead of a fire blanket, then a plastic bag after the liner caught a spark.
The worker apologized and suggested that he was distracted or tired at the time, but acknowledged it was a mistake.
JBS reviewed the interviews and surveillance video and determined that the worker violated a cardinal rule deliberately, as he acknowledged that he was aware of the fire watch rule and filled out the hot work permit. Management also considered it a serious safety infraction when he used a plastic liner and bag instead of a fire blanket.
JBS terminated the worker’s employment for violating the cardinal rules policy, specifically the failure to properly execute a hot work permit and displaying “extreme negligence for the safety of others,” and his actions were a willful and deliberate breach of safety rules.
A millwright apprentice involved with the job was also terminated, but he reached a settlement reinstating him with a written warning. The apprentice hadn’t been assigned to the job and had been asked to help.
Unjust termination grievance
The union filed a grievance calling the termination unjust. The worker apologized and said it wouldn’t happen again. He also said that he suffered financial hardship because he was ineligible for employment insurance benefits due to the nature of his dismissal and he had to sell his car to visit his mother in the Philippines before she died.
The union pointed to the fact that the apprentice employee was reinstated, as well as another incident after the worker’s dismissal in which a welder with a hot work permit didn’t remain at the site after finishing and a fire occurred.
The worker testified that it was “sometimes” his practice to stay for 30 minutes on fire watch, but he sometimes left if he was expecting someone else to return. He acknowledged the policy required someone to always be at the welding site for 30 minutes, but he said that he left early about “50 times” during his employment with JBS.
The arbitrator referred to the established framework in the jurisprudence to assess whether the worker’s misconduct justified dismissal and determined that it was serious, deliberate, and placed other employees and the workplace at risk.
The arbitrator noted that the worker admitted to previously not following the fire watch 30-minute requirement about 50 times over his 4.5-year tenure, which supported the position that his actions were “intentional, deliberate and willful” and the incident wasn’t isolated.
Willful misconduct
The fact the worker acted similarly in the past was relevant to the determination that termination was appropriate, says Lauren Barteluk, an employment lawyer at Carbert Waite in Calgary.
“Whether the worker would re-offend if reinstated is a significant factor, because we can’t have a worker in a workplace with repeated safety infractions,” she says. “Somebody who willfully, intentionally, and deliberately breaches a safety protocol is very different than when somebody makes a mistake or has a lapse in judgment based on an emotional moment.”
The arbitrator accepted that the termination caused financial and personal hardship for the worker, but found it was the only factor in his favour and it wasn’t enough to offset the seriousness of his misconduct and the risk it created for workplace safety.
The arbitrator also found that JBS’s policies included progressive discipline but recognized that safety infractions could be serious enough to warrant termination for a first offence – similar to the case law. Termination wasn’t automatic – the company investigated and assessed the seriousness of the worker’s discipline in relation to the safety risk and its policies, said the arbitrator.
Safety policies, training
JBS’s policies on safety and training played a key role in supporting the termination, according to Barteluk.
“When an employer shows that it genuinely takes safety seriously and [a safety violation] can have a detrimental impact on the workplace, it shows that it’s not being arbitrary and it’s not trying to just find a reason to fire the worker,” she says. “It shows this is a workplace where a safety infraction can be detrimental - JBS argued a little bit about another plant that had a fire and how detrimental it was for the other plant.”
As for the union’s argument that other employees with similar misconduct were treated more leniently, the context was different – the apprentice employee hadn’t been assigned to the job and hadn’t filled out the hot work permit, while the employee in the later incident believed the fire watch would be there momentarily and was remorseful with no evidence of prior similar misconduct, the arbitrator said.
Although the union’s argument of unfair discipline compared to other employees with similar misconduct failed, the case is a good reminder for employers to not discriminate with regards to discipline, says Barteluk.
“For exactly the same circumstances and the same situation, you can’t give one employee a written warning and another employee a termination for cause,” she says. “In this particular case, it didn't make a difference in the outcome as the arbitrator found valid reasons for treating the different employees differently.”
The arbitrator determined that termination was appropriate and dismissed the grievance.
“The importance of maintaining proper safety policies and having proper training in place, is going to create a safer work environment,” says Barteluk. “It can also be beneficial for the employer in upholding a termination, to show that it’s something the employer takes seriously and it has to discipline to deter this conduct from occurring again.”
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