Employees had hideaway in restricted area
This instalment of You Make the Call features a group of employees who went where they’re not supposed to go.
Tolko Industries operated a sawmill and planer mill in Merritt, B.C. It also ran a veneer mill adjacent to the other mills for a time, but closed it. The veneer mill building was used for storage after it was closed, but most of the building went unused except for a small lunchroom and washroom.
Glenn McNeely and Jacob Collins began working for Tolko in March 2012 and Brendan Colter in January 2014. They were all hired as part of the graveyard-shift cleanup crew, which removed dust and debris from the sawmill machinery and plant while it was shut down overnight.
Tolko employees were allowed three paid breaks during their shifts. For the graveyard shift, the allotted breaks were at 1 to 1:10 a.m. and 5:30 to 5:40 a.m. with the lunch break at 3:15 a.m. Breaks could be taken in one of three lunchrooms — one each in the sawmill, planer mill, and the old veneer mill.
Tolko experienced problems with employees on the graveyard shift taking extended breaks. This was a safety concern because they had to ensure all the sawdust and debris was cleaned up before the machinery was up and running at 6 a.m. Recently, there had been explosions at other mills caused by a buildup of sawdust.
McNeely, Collins and Colter were all counselled on overextending their breaks, though they weren’t disciplined. The sawmill superintendent reminded employees at a safety meeting on Feb. 10, 2015, that extended breaks were not acceptable.
The three workers liked to take their breaks together away from the rest of the crew and often went to the lunchroom in the old veneer mill. One day in March 2015, they found the old lunchroom at the top of some stairs in the veneer mill building and a small, windowless room at the far end. They decided to take their breaks there and found a table and chairs for the room.
The graveyard shift supervisor heard from the night watchman that some employees were in a restricted area in the veneer building. The supervisor went through the building, including the old lunchroom, where he saw the door to the small room behind it. The next day, he advised the crew that they were not allowed in the restricted areas of the veneer building.
On March 25, the supervisor looked for the three men after a coffee break but couldn’t find them. He suspected they had gone to the old lunchroom so he went with another supervisor to check it out. There was nobody in the lunchroom, but the supervisor noticed the deadbolt on the door to the little room was engaged. He knocked on the door but there was no response.
The two supervisors listened for noises, but left about 10 minutes later. By this time it was 6 a.m., 20 minutes after the end of the second coffee break.
McNeely, Collins and Colter were in the little room staying quiet. When the supervisors left, they opened a window in the old lunchroom and went onto the roof of the veneer building. Collins lowered himself onto a shed, jumped down, and ran to the sawmill.
The graveyard shift supervisor went back to the sawmill to ask around, and when he returned to the veneer mill the other supervisor said he had heard a noise and saw an arm go past transparent roof sheeting above. They heard another noise, went outside, and saw McNeely and Colter running down the stairs of the old lunchroom to the washroom.
The supervisor rounded them up and told them they were suspended indefinitely pending investigation. The next day they denied being in the little room behind the locked door or going on the roof. They also didn’t acknowledge they had extended their coffee break time or apologize.
Tolko terminated their employment effective March 30 for abandoning their assigned work areas, taking extended breaks, and lying about it afterward. The workers grieved their dismissal, arguing they didn’t come clean initially because their union representative told them they shouldn’t admit to anything. They also said they realized their behaviour was wrong and finally apologized.
You Make the Call
Was dismissal excessive?
OR
Was there just cause for dismissal?
If you said dismissal was excessive, you’re right. The arbitrator found the three employees took an unauthorized, extended break on March 25 and they effectively abandoned their jobs. They also tried to avoid detection when they were almost caught. These were forms of dishonesty, which was exacerbated by lying during the investigation, said the arbitrator.
The arbitrator also found their misconduct raised safety concerns, as they were in a restricted area with no one knowing where they were. In addition, abandoning their jobs left some of the cleaning work to be done after the machinery started working again.
However, the arbitrator noted Tolko had never previously disciplined any of the workers for past misconduct. Since workplace discipline should be progressive and corrective, dismissal as a first step wasn’t appropriate in this case.
Tolko was ordered to reinstate the employees with no compensation, with the four months since their dismissal serving as a suspension.
For more information see:
• Tolko Industries Ltd. and USW, Local 1-417, Re, 2015 CarswellBC 2337 (B.C. Arb.).
