The grocery store had provided an anti-fatigue mat for cashiers on the self-checkout station. When it was removed to encourage the cashiers to more around more, the union grieved. The arbitrator found that the mat was a "reasonable precaution" against injury under the OHSA.
When the employer removed an anti-fatigue floor mat from a shared workstation, the union grieved.
The employer operated a chain of retail grocery stores. In 2005, the employer set up a “u-scan” desk that allowed customers to check themselves out by scanning and paying for their grocery items by themselves.
Five u-scan terminals were grouped around a central desk that was staffed by a store clerk. The job of the clerk was to help customers when they had problems and to recruit new customers to try the u-scan.
There was a station behind the desk at the u-scan for clerks when they were not recruiting new customers or helping customers through the checkout. An anti-fatigue mat covered the concrete floor at the clerk’s station.
Anti-fatigue mats are designed to reduce fatigue and reduce the potential for musculoskeletal injuries caused by standing on hard surfaces for prolonged periods.
In May 2010, the company removed the anti-fatigue mat from clerk’s station at the u-scan.
The union grieved.
The union said after five years, the practice of supplying an anti-fatigue mat now constituted a condition of employment or a working condition. As such, according to the terms of the collective agreement, the employer could not unilaterally alter the terms or conditions of employment.
Every reasonable precaution
In any event, the union said, the Occupational Health and Safety Act (OHSA) obliged the employer to take every precaution reasonable in the circumstances for the protection of a worker. The employer’s actions in this case were a clear violation of that statutory obligation, the union charged.
The anti-fatigue mat was not a condition of employment, the arbitrator said. While the practice had been followed long enough to acquire the first of three necessary attributes to qualify as a working condition, it did not meet the other two key criteria. First, the practice was not a sufficiently substantial or mainstream aspect of the employment relationship. Second, the practice was not so fixed that the parties considered it to be beyond the unilateral control of management.
Before the arbitrator, the employer challenged the assertion that it had violated the OHSA. Employees were not forced to work at the u-scan. If they experienced discomfort working there, they were free to work elsewhere. The employer acknowledged that the OHSA obliged it to take every reasonable precaution in the circumstances for the protection of a worker. It was not required to take every precaution.
The company had envisioned and “engineered” the u-scan clerk job as a mobile position as opposed to a static one. By taking away the anti-fatigue mat, the company had acted reasonably by discouraging employees from standing in one position at the u-scan station. In any event, the employer argued, walking around is a better protection for employee health than standing on an anti-fatigue mat.
The employer had violated the OHSA, the Arbitrator said.
Lack of evidence
The employer had removed the mat because it believed it served as a disincentive. Instead of moving about as the job required, the company feared employees would just stand on the mat behind the podium, the arbitrator said.
There was little evidence to support this view.
“The Employer fears an impact on efficiency, but, it has only anecdotal evidence to support its observation that the presence of the mat in fact discourages the mobility it wants from the u-scan clerks. The mat was not removed in 2010 because of inefficiency by u-scan clerks.
“The reason for removing the mat at the time was to comply with a preconception that the mat would discourage movement by the u-scan attendants, rather than with any empirical support for that conclusion. No study was done on the impact on efficiency of the presence of the mat before it was removed. The evidence is that the more efficient u-scan clerks are among those who want the mat, and appreciated standing on it to relieve the discomfort in their legs. There is also no evidence that the efficiency required of the position cannot be achieved by methods other than removing the mat, such as explaining more carefully to the clerks what is expected of them, regularly coaching them of their responsibilities and, in appropriate circumstances, counselling or disciplining them,” the arbitrator said.
Providing an anti-fatigue mat at the u-scan station was a reasonable precaution for the clerks who worked there, the arbitrator said.
“The Company’s failure to take that precaution is therefore a breach of the Company’s statutory obligation.”
The grievance was upheld.
Reference: Loblaws Supermarkets Limited and United Food and Commercial Workers Union, Local 1000A. Christopher Albertyn — Sole Arbitrator. Susan Ballantyne for the Union. Michelle S. Henry for the Employer. Nov. 28, 2011. 22 pp.
