Union calls termination excessive
The grievor, a back-up firefighter at Lanxess, was discharged for an alleged delayed response to a fire emergency.
The employer operates petrochemical facilities in Sarnia, Ont. As part of its operations, it maintains its own fire hall and provides first responder emergency fire and rescue services for other companies operating nearby.
At the time of his discharge, the grievor had less than two years of service as an operator technician at the employer’s BIOX wastewater facility. He also served as a back-up firefighter. When he was fired, the grievor had multiple suspensions on his disciplinary record .
The employer argued the grievor engaged in culminating disciplinary misconduct that, given his record and short service, warranted the penalty of discharge.
The union, however, argued the grievor was discharged without just cause and requested he be reinstated with full compensation and without any loss of seniority.
At about 4 a.m. on Feb. 8, 2013, the fire hall put out an emergency alert regarding a fire at Styrolution, a styrene producer at one of the employer’s contract partners. the grievor and the employer’s fire captain responded to the call. A few days later, concerns were raised regarding the grievor’s response time so the employer launched an investigation.
The investigation indicated the grievor took about 90 seconds to respond to the alert. When he did respond, the grievor asked for the call to be repeated. The investigation also found the grievor took much longer to arrive at the nearby Styrolution facility than was warranted by the snowy weather conditions.
In addition to driving significantly under the speed limit, the grievor was delayed by having to brush snow from the fire hall’s vehicle. As part of his role as a back-up firefighter, the grievor is responsible for making sure the fire hall vehicle is ready to respond to an emergency at all times.
the grievor was asked about these delays. He said he was flustered after hearing the call, saying he got "tunnel vision," which left him unable to focus. the grievor said he asked for the call to be repeated because he could not hear all of the details and wanted to be sure he was prepared before responding to the call.
With respect to the route he took to the scene, the grievor could not remember how fast he was driving. He said he drove safely under the speed limit due to the snowy road conditions.
The employer found that none of the grievor’s explanations justified his delay in responding to an emergency alert, and his excuse of tunnel vision was found to be self-serving and without any concrete evidence.
He was dismissed on March 25, 2013.
His union, Unifor Local 914, grieved the termination. The union argued the employer failed to meet the onus of proving the grievor’s performance was culpable conduct.
Furthermore, the union said, the grievor was never instructed during his training about minimum or maximum response times and there were no guidelines regarding expected response times.
Even if his response was slow, the union submitted, this was a performance issue that should have been dealt with through further training rather than by a disciplinary process. The union requested the grievor be reinstated with full compensation and seniority.
If some discipline was warranted, the union said, the penalty of discharge was too severe considering the circumstances.
Arbitrator George S. Monteith, however, found the union’s argument to be untenable.
"To accept counsel for the union’s argument would lead to the absurd conclusion that a fire service could never discipline a firefighter for a delayed response no matter what the circumstances or how much time the firefighter took to respond simply because it failed to establish and communicate response time standards applicable in all emergency call,s" he said.
The grievor knew that he was expected to respond immediately in the event of an emergency."
Monteith found that waiting over 90 seconds to perform the basic and fundamental duty of responding to a fire emergency as quickly as possible is an unreasonable period of time for any firefighter.
Monteith also found the incident was a culminating incident and the employer was entitled to rely upon the grievor’s disciplinary record to support its position for dismissal. The grievance was therefore dismissed.
Reference: Lanxess Inc v. Unifor, Local 914, 2015 CanLII 11756.
