Worker with discipline history cements firing with violation

An Ontario company had just cause to fire a worker with a history of disciplinary problems for operating a forklift with poor brakes and not reporting it, an arbitrator has ruled.

Chris Reoch, 51, worked for Power Precast Solutions, an Ottawa-based manufacturer of precast concrete products such as bumper curbs and traffic barriers, since November 2017.

Between September 2018 and March 2020, he was disciplined several times for recurring issues with “harassment/violence in the workplace,” insubordination, attendance and “personal work issues” — including three instances of coaching, one verbal warning, four written warnings and two one-day unpaid suspensions. Reoch was also suspended for three days for safety issues, which was a particular concern for Power Precast since its workplace was safety sensitive.

Reoch co-chaired the company’s joint health and safety committee and had a copy of the Power Precast health and safety handbook, which required workers to “immediately report unsafe acts and conditions to supervisors.”

On May 29, 2020, Reoch was operating a “bucket truck” — a forklift fitted with a bucket to carry concrete. At the end of his shift, Reoch turned the bucket truck over to a coworker. He left without speaking to the coworker.

The coworker inspected the truck and immediately noticed there was something wrong with the brakes. He drove it off to the side and determined that it wasn’t safe to use. Not finding anything marked in the logbook, he called the organization that serviced the company’s forklifts to check it out.

The maintenance company found the forklift had “zero brakes” with cement accumulated on the brake adjuster. It recommended driving the unit to get the dust out but it remained “tagged out” of service until new parts could be installed.

Afterward, the coworker asked Reoch about how the brakes on the truck had been working the previous day, and Reoch replied that they weren’t working well. The yard supervisor then spoke to Reoch about it, and Reoch said that the brakes were “not the greatest, then all of a sudden on that day, none.” He explained that he didn’t enter it into the logbook because he “got used to it” by using reverse to slow or stop the forklift — which the supervisor considered bad practice — and he was “not sure how bad they really were.”

The company determined that, since Reoch had several previous instances of discipline including a safety-related suspension, his employment should be terminated effective June 8.

The union grieved the dismissal, arguing that termination was excessive and there was a chance of rehabilitation. Reoch acknowledged that it was “foolhardy” to operate the forklift and not tell his coworker, as this could have resulted in injury or death to someone. He explained that he had been preoccupied with his wife’s deteriorating medical condition, but he had since received counselling and his wife’s condition had improved. He apologized at the hearing.

The arbitrator noted that there was no doubt Reoch was “guilty of deliberate and reckless behaviour.” In addition, he was a short-term employee with a “less than stellar disciplinary record” as well as co-chair of the joint health and safety committee, which brought a higher standard of safety conduct, said the arbitrator.

The arbitrator found that the apology and acknowledgment of misconduct at the hearing came too late and only when his job was in jeopardy, when he could have apologized at the investigation interview. The arbitrator also didn’t accept Reoch’s explanation that his wife’s condition affected his ability to report a safety issue and caused him to operate unsafe machinery for multiple hours.

The arbitrator found that Reoch’s “act of commission and one of omission” could have caused “catastrophic damage to life or limb.” Given his short service and disciplinary record, there was little chance of rehabilitation, the arbitrator said in upholding the termination.