The grievor was working under a last chance agreement (LCA). He was involved in a culpable incident and was fired. The arbitrator found that the incident did not trigger the LCA and substituted a lesser penalty.
A forklift operator was fired following an accident where he ran over a co-worker’s foot. The union grieved.
A.O. worked at an auto parts manufacturer. He had 13 years’ service when he was fired on Jan. 9, 2012.
There was discipline on A.O.’s record. On May 16, 2010, he was suspended for operating a forklift while under the influence of alcohol. A.O. was fired about 10 months later when he again reported to work under the influence of alcohol and in an unfit state.
A.O. was reinstated under the terms of a Last Chance Agreement (LCA) on April 1, 2011.
Under the LCA, A.O.’s return to work was conditional on his compliance with all company rules, policies and procedures. The LCA also provided for A.O.’s immediate termination if he showed up at work under the influence of alcohol, or if he was caught with alcohol at the plant, or if he even smelled of alcohol while at work.
Serious injuries
On Dec. 20, 2011, A.O. was operating his forklift. While driving down a main aisle at the plant, the front right fork of his machine ran over the left foot of a co-worker who was standing in the aisle talking to another employee.
About 18 inches of the fork tracked over the worker’s foot before A.O. was able to lift it. The worker sustained serious but not life-threatening injuries to her foot and ankle. The worker did miss time at work as a result of the accident; however, she was returned to modified duties and did recover fully from her injuries.
The company’s investigation of the incident revealed conflicting accounts.
While the injured worker speculated that A.O. may have been going too fast, A.O. insisted that he was only travelling at about one to two kilometres per hour.
A.O. said that he saw the worker standing in the aisle and that he honked his horn.
Nevertheless, it was established that the aisle was clear. There was no load on A.O.’s machine to obstruct his vision or any obstacles in his path to obscure his line of sight. There was nothing to account for either a sudden change of the forklift’s direction or any reason why the worker would suddenly move into the path of the machine.
A.O. was fired.
The union argued that the incident in question was simply an “accident” and that no culpability attached to A.O.’s behaviour. The union said that the termination was without cause.
Culpable conduct
The employer said that A.O. was culpable and that termination was appropriate under the terms of the LCA.
The Arbitrator agreed that A.O. was culpable.
“In these circumstances… I agree… that the Grievor, as the forklift driver, was either careless, reckless or negligent. In tort law, the applicable principle is Res Ipsa Loquitor. The fact that [A.O.’s] driving caused the forklift to run over the victim’s foot is proof of, at minimum, carelessness for the which the Company was justified in imposing discipline.”
However, the Arbitrator said that termination was excessive in the circumstances.
The LCA did not apply in this case. None of the circumstances present in the accident could justify the invocation of the automatic termination provisions in the agreement.
Discipline was warranted.
In view of A.O.’s 13 years’ seniority and the requirements of progressive discipline, the Arbitrator ruled that a six-month suspension without pay was appropriate in the circumstances.
However, A.O.’s return to work was conditional on his compliance with additional constraints and requirements.
A.O. was banned from operating any motorized vehicles — including forklifts — at the plant for five years, although A.O. would be permitted to bid on jobs that required the operation of a motor vehicle after two years if the parties agreed.
The two-year period could be extended if A.O. was absent for more than four consecutive weeks at any time because of illness, injury or leave of absence.
And, any grievance related to discipline or discharge during this period was to be filed at Step three and referred to Arbitration if there was no resolution.
