Worker reinstated after second safety mishap in five months
Dufferin Concrete’s decision to fire a worker for a safety infraction was hasty, an Ontario judge has ruled.
The employee, known as N.B., was hired by Dufferin Concrete as a millwright in October 2012.
On March 18, 2013, he was assigned to change a flow valve in the company’s Malton, Ont., plant.
That particular valve controls the flow of chemicals used to make batches of concrete produced at the plant. Standard procedure for this assignment includes "lockout/tagout."
N.B. is required to shut off any electrical current leading to the flow valve before he can begin working on it. He must isolate the power service, lock out the switch or device that controls the power source and tag the lock with his name so no other workers accidentally turn the power back on while he is working.
This procedure is known as lockout/tagout and is part of Dufferin Concrete’s "Five Cardinal Rules" for employees.
On March 18 N.B. could not find the switch to turn off the electrical power for the flow valve.
Instead of locating the power source, N.B. disconnected the electrical wires from the valve itself, wrapping the exposed wires with tape.
The tape slipped off one of the wires and when it touched another wire it created sparks and caused an electrical short. The incident did not result in any injuries or damages.
The company terminated N.B. on March 20 with a letter of dismissal.
"The safety of the workplace at all times must be of paramount importance, both to the company and to employees," the letter stated. "On March 18 you compromised your safety and put yourself in direct harm when you performed maintenance work on a piece of equipment without ensuring proper safety controls were in place. Your breach of lockout procedures and reckless disregard for your own safety cannot be condoned."
Repeat offender
The employer testified this was N.B.’s second lockout infraction in only five months.
On Dec. 20, 2012, the employee failed to follow proper procedure when he was working on an incline conveyor and turn chute at the company’s Toronto plant.
The employee was suspended for one day following the Dec. 20 incident.
The suspension stated that failure to follow safety procedure in the future would result in further and more severe disciplinary action, "up to and including discharge."
N.B. testified he understood the proper procedure for performing maintenance on the flow valve, but chose his course of action because he understood the job needed to be done as soon as possible for the plant to be operational.
He said he has successfully performed the proper lockout procedure as many as 400 times for the company.
"I wanted to accommodate the company," he testified. He acknowledged the March 18 incident was his fault, saying, "I made a mistake. I thought I could do the job safely… I’m sorry, it won’t happen again."
In its grievance Teamsters Local 230 agreed N.B. failed to follow proper safety procedure but contended that the employee was unjustly terminated and sought full redress with no loss of seniority.
Lack of evidence
The union argued Dufferin Concrete lacked the "body of work" time with the employee to conclude he was an unsafe worker. N.B., the union argued, took full responsibility for his actions and understands his failure to follow procedure was unacceptable.
When the employee previously failed to follow procedure, he was given a one-day suspension.
Progressive discipline typically involves one-day, three-day and five-day suspensions prior to discharge, the union argued.
The employee correctly performed the lockout procedure hundreds of times and, the union testified, should be given a second chance.
The arbitrator , William A. Marcotte, found that N.B.’s infraction was a low-risk situation, but stated the employee’s misconduct was a serious safety offence.
"He exercised bad judgment in deciding not to de-energize the flow valve," Marcotte said. "As he himself testified, ‘It was unsafe but I thought I could do it safely.’ This attitude towards working safely expressed by the grievor gives me pause as to the likelihood of the grievor working in a safe manner should he be reinstated."
Marcotte ultimately ruled N.B.’s termination to be excessive and ordered him reinstated with several conditions. The grievor is suspended without pay from March 20, 2013, until the date the award is issued.
The grievor will be reinstated but will not accrue seniority for the period of suspension. The grievor will receive lockout/tagout training and his supervisor will attend training to provide examples of hazardous situations.
Lastly, should N.B. commit any safety violations in the year following his reinstatement Dufferin Concrete will have proper cause to dismiss him.
Reference: Dufferin Concrete and Teamsters Local 230. Sole arbitrator — William A. Marcotte. J. Green for the Employer. M. McCreary for the Union. Oct. 1, 2013.
