Failure to make use of personal protective equipment called for serious discipline, but the employee’s long service and demeanour made him a good candidate for reinstatement. However, he was demoted to a lower classification.
A meat cutter was fired after he was observed operating the “chine” saw without wearing the required personal protective equipment. The union argued that lesser discipline was appropriate.
T.R. was rated as an excellent employee. Hired in 2001, T.R. operated a chine saw at one of the company’s meat processing plants.
The chine saw is a stationary tool that uses a band saw blade to remove the “chine bone” — the thoracic vertebrae — from a beef rib.
Beef ribs weighing approximately 16 kilos each are funneled to the Chine Saw Operator via a conveyor belt at a rate of about one every six seconds. The operator pulls the rib from the conveyor and pushes it through the saw to remove the bone. The processed meat is then put on one conveyor while the chine bone is directed to another conveyor. An operator is expected to process about 3,000 ribs during an eight-hour shift.
The job can be hazardous and various types of personal protective equipment (PPE) are employed to protect workers. Nevertheless, three incidents involving Chine Saw Operators had been reported at the facility since 2007.
In 2009 the employer provided stainless steel arm guards — a new type of PPE — for Chine Saw Operators. On September 28, T.R. was observed operating the chine saw without the arm guards. T.R. was awarded a three-day suspension, which is the final step before termination. T.R. grieved. The grievance was settled and it was agreed that he would be subject to suspension before termination in the event of another incident.
New personal protective equipment
In December the employer introduced another new type of PPE. T.R. assisted the employer in testing a new stainless steel, chain mail glove before it was introduced to the other employees. By June 2010, the new glove was mandatory. Nevertheless, on a number of occasions after May 2010, T.R. was observed operating the saw without his glove. T.R. was warned informally and, on the last occasion, warned that if it happened again he would be discharged.
It did happen again. On September 17, 2010, T.R. was observed operating the saw without his glove. T.R. was interviewed. A union representative was present. T.R. said that he had a sore finger and that the glove was cumbersome and difficult to work with when it became clogged with fat. Smiling during the interview, T.R. acknowledged that wearing the glove was mandatory and that he had been warned.
T.R. was fired. Employers face significant sanctions for failing to comply with the obligations of the Occupational Health and Safety Act, the employer said, and employees also have concomitant obligations to operate equipment in a safe manner.
T.R. knew the rules and had been warned. That he smiled during the post-incident interview led the employer to conclude that T.R. did not appreciate the seriousness of his actions.
T.R. presented a real and unacceptable risk to repeat his unsafe behaviour and put himself and his co-workers in further danger, the employer said. Termination was warranted.
Discipline was warranted, the union conceded. However, termination was not appropriate in this case.
The Arbitrator agreed.
Health and safety statutes oblige the employer to provide a safe and secure workplace. Employers, in turn, have the authority to insist that workers perform their duties safely.
Serious workplace offences
Citing Arbitrator Lynk in Imperial Tobacco, the Arbitrator affirmed that safety infractions are among the most serious workplace offences. Safety violations may warrant penalties up to and including termination. Actual harm or physical injury is not necessary to establish the seriousness of the incident, the Arbitrator said.
The key factors that an Arbitrator will consider to mitigate penalties for safety infractions are based on an assessment of whether or not the person is likely to commit the same offence again.
Seniority, disciplinary record and credibility — both the worker’s acknowledgement of his or her wrongdoing and of any undertakings to follow proper procedures in future — come into play.
Reinstatement in a less dangerous job and at a lower pay grade was the appropriate penalty for T.R., the Arbitrator said. As well, the lapse between his termination and reinstatement without pay — in effect a de facto, four-month suspension would stand.
T.R. was not refusing to wear the glove. The Arbitrator accepted that T.R. had a sore finger on the day in question and that the glove became difficult to use when the joints became clogged with fat. This did not excuse T.R.’s actions but it did explain why he did what he did on that occasion.
The Arbitrator accepted that T.R. was sincerely remorseful and that it was his nervousness that caused him to smile during the post-incident interview. The Arbitrator also accepted T.R.’s assurance that he would follow health and safety rules in future.
T.R. was an excellent employee with nine years’ service. He deserved another chance. However, his reinstatement was to be at a lower level.
“This reinstatement to such a job classification in a lower job Class will represent a demotion and pay reduction for [T.R.]. This is a substantial consequence. I am satisfied that this will impress upon [T.R.] the seriousness of his misconduct and deter him from violating health and safety rules in the future.”
Reference: Cargill Ltd. and United Food and Commercial Workers Canada, Local 175. Peter Chauvin — Sole Arbitrator. Daniel L. Leone for the Employer and Marcia Barry for the Union. January 12, 2011. 18 pp.
