Alberta worker didn’t follow procedures in safety-sensitive position
An Alberta company with inconsistent enforcement of safety policies has been ordered by an arbitrator to reinstate a worker it fired after two safety-related incidents.
The worker was a lead operator at a sour gas plant near Brazeau, Alta., for Calgary-based Tidewater Midstream. The worker had 29 years of service at the plant, which was purchased by Tidewater in 2015. Over that time, he had one instance of discipline — a verbal warning following a physical altercation with a coworker in February 2018. Tidewater had a progressive discipline policy consisting of four steps from verbal warning to termination.
Safety was important at the plant as the production of sour gas involved hazardous substances. After Tidewater purchased the Brazeau plant, it relied on the safety policies already in place and was slow in developing its own.
On May 9, 2018, the worker was involved in the recommissioning of a sour gas facility that had been shut down for repairs. Problems were found in a Claus Converter vessel — used for recovering sulfur from natural gas — that required a closer look. The worker agreed with other employees that it wasn’t safe to put someone in the vessel because its support beams were weakened.
Initial attempts to see inside the vessel were unsuccessful, so the worker decided that he would enter it himself and take pictures. The worker didn’t fill out confined space entry documentation and he didn’t have a confined space certificate, although health and safety legislation required “a valid entry permit” for a confined space at a work site.
The worker wasn’t wearing proper safety glasses because he would have had to take them off to use the camera. Inside the vessel, he got some chemical dust in his left eye. He flushed his eye at the plant, informed his foreman of the incident, and drove himself to the hospital for treatment.
On May 24, the worker was suspended pending an investigation into the incident. A third-party investigator recommended Tidewater take disciplinary action against the worker and implement a plan to track certifications required at each of its facilities.
Tidewater suspended the worker a second time after it learned that the worker climbed up scaffolding and opened up a flange to vent gas without proper respiratory equipment and with other employees nearby. The worker said he had already tested the gas line twice and deemed it to be safe after finding no chemicals present, but he hadn’t followed official procedure. An investigation found the worker had taken steps “to mitigate risk to an acceptable level” before venting the gas and recommended Tidewater develop its policies.
On June 28, Tidewater dismissed the worker for disobeying “a clear and reasonable order that no one enter the Clause Converter vessel,” failing to complete confined space documentation, refusing to wear proper personal protective equipment (PPE), and releasing gas without proper breathing apparatus near others.
The arbitrator found there was no “clear and reasonable order” to not enter the vessel; rather the worker and others agreed no one should enter and then the worker decided to go in himself. No operators had previously been disciplined for not having confined space documentation, so disciplining the worker would be discriminatory, the arbitrator said.
The arbitrator also found that Tidewater employees were “very casual about wearing PPE” and there was no evidence of previous discipline for not wearing it.
As for the second incident, the evidence was that the worker had made an effort to mitigate the risk. Once again, there was no previous discipline for such conduct and Tidewater policies had not been brought to the attention of employees properly.
In addition, the arbitrator noted that Tidewater had failed to follow its own progressive discipline policy. The company was ordered to reinstate the worker with a written warning.
Reference: Tidewater Midstream and Infrastructure and Unifor. Alan Beattie — arbitrator. Christopher Dormer for employer. Drew Blaikie for employee. Jan. 24, 2020. 2020 CarswellAlta 780
