The grievor had recently been disciplined for failing to use proper safety equipment. On the final occasion, he was terminated. The employer considered it a culminating incident. The arbitrator found that, due to his age, length of service and undisclosed disability, a demotion was the proper outcome.
A worker was fired for failure to wear personal protective equipment while handling toxic substances. The employer said the safety violation was a culminating incident. The union argued that termination was excessive.
Employed by a manufacturer of paint and coatings, T.O. had 13 years of mostly discipline-free service. His job designation was “filler.” In the course of his work, T.O. was required to handle and pour various coatings and finishes. Many of the coatings are toxic and require careful handling.
T.O. was fired on January 31, 2011 for failure to wear personal protective equipment while handling a toxic compound in the workplace.
Beginning in September 2010, T.O. began to have problems following proper procedures at work.
On one occasion, he failed to report a spill. Also during that period of time, there were two or three incidents where he was discovered working without the proper personal protective equipment.
Chances used up
T.O. had received cautions for some of these infractions. He had also received some discipline. The employer’s view was that T.O. had used up all his chances.
Two of the incidents that the employer was relying on were minor, the union said. The termination was therefore excessive in the circumstances. The union also charged that the employer’s system of progressive discipline was flawed and prejudicial to T.O. Moreover, T.O. was suffering from a disability. Any action by the employer against T.O. would have to conform to the requirements of the Human Rights Code, the union said.
The Arbitrator acknowledged the employer’s fundamental concern with safety and proper procedures. “I have no difficulty in finding that this Employer, given the nature of the workplace, has a legitimate and profoundly important interest in ensuring close compliance with safety procedures.”
However, in view of all of the circumstances, the Arbitrator agreed that the termination was not appropriate.
There were mitigating factors that counted in T.O.’s favour. T.O. may have had some shortcomings as an employee, but he was far from being a difficult employee, the Arbitrator said.
Works hard
“He works hard; admits his wrongdoing and readily acknowledges that the employer had a right to take action against him. While his health and safety offences are of consequence, they did not endanger others or cause damage to the Employer; he had 13 years of essentially discipline-free service; he is 51 and has little prospect of employment.”
T.O.’s alleged disability was also a factor. While T.O. did not disclose his condition to either the union or the employer until after his termination, the Arbitrator accepted evidence establishing that T.O. suffered from a depressive mood disorder and that he was in the care of a psychiatrist.
“[I]t seems more likely than not that [T.O.] has a disability under the terms of the Code; and that the Employer, if aware of same, could not have terminated the Grievor without first doing a full assessment of the Grievor’s disability, its impact on issues of his culpability for his procedural failures, and a full assessment of how the Grievor could be accommodated in this workplace.”
Reinstatement was appropriate, the Arbitrator said.
T.O. was to be reinstated at the position of Utility (helper) — a demotion. He was also to be paid at the Utility (helper) rate.
T.O. was to be assigned to the shift opposite his previous assignment and there was to be no compensation for lost wages. His seniority, benefits and pension were not affected.
T.O. was to be prevented from bidding out of the Utility (helper) job for two years and contingent on his problem-free performance.
T.O.’s record was to be cleared and replaced with a written warning for unsafe procedures and a 10-day suspension for failure to wear proper personal protective equipment.”
