Despite the injuries the grievor caused to a co-worker, and despite the senseless nature of the act, he was reinstated. His apologies, his long, clean record and his good prospects for improvement saved him.
A worker was fired after his thoughtless prank activated a machine that he thought was locked out. The worker’s friend, who was inside the machine, sustained serious injuries.
D.M. was a shipper/receiver at a packaging plant. He had a discipline-free record and 12 years’ seniority.
Using large, automated machines, the plant manufactures finished boxes from sheets of corrugated cardboard. The plant is a potentially hazardous industrial setting. Workers are trained to be aware of workplace hazards and to adopt safe work practices, including machine lockout procedures.
Horseplay was expressly forbidden.
Around midnight on August 16, 2010, D.M. parked his forklift to visit with his friend S.L., who was operating the “12-28 machine.”
Three workers normally operate the 12-28: a “feeder” and a “take-off person” at either end of the machine and an “operator” at the controls in the middle.
The 12-28 features a large swinging window to the right of the control panel to allow access to internal machine parts, including long metal fingers that extend into the chamber and retract in order to guide the material as it passes through.
While opening the glass door will pause the machine’s cycle, that action does not stop or lockout the machine.
To maintain or clean internal sections of the 12-28, the machine must be stopped and locked out with the fingers in the retracted position.
Chatting with D.L. while he was working, S.L. went into the 12-28 to clean up some glue from some of the surfaces inside the machine. The machine was idle, the window was open and the fingers were retracted.
“Just f——— around”
For no apparent reason — “just f——— around” as he put it — D.L. closed the window while S.L. was inside the 12-28. The machine cycled and the fingers extended into chamber seriously injuring S.L.
D.L. was fired. The union grieved.
The union acknowledged the seriousness of the incident and the employer’s legitimate interest in general deterrence. Nevertheless, the union said that D.L. deserved another chance.
His behaviour may have been wrong, but it was not reckless. D.L. had no idea that the machine would cycle because of his action. There was no intent to cause injury.
D.L. had paid a significant personal price for his lapse of judgment, the union said. Reinstatement without compensation — in effect, a nine-month suspension without pay — was the appropriate penalty in the circumstances.
The termination was warranted, the employer argued. D.L. was reckless and his actions were a clear violation of company safety rules and the relevant legislation.
Moreover, this was no minor accident. D.L.’s “f——— around” led to a very serious accident that might well have resulted in death, the employer said. Action to enforce safety rules and to support general deterrence is necessary to underscore the message that safety is paramount. D.L.’s reinstatement would compromise that message, the employer said.
D.L.’s “foolish” behaviour brought significant legal and commercial interests into play, the Arbitrator said. D.L.’s responsibility for the accident and his personal obligation to comply with company safety rules and health and safety statutes were factors. Also in the mix was S.L.’s right to a safe workplace and the employer’s statutory obligation to provide one.
Flesh and blood
Indeed, the Arbitrator said, under the Workplace Safety and Insurance Act and the Occupational Health and Safety Act, the employer could face monetary — and even criminal — sanctions for failing to meet its obligations to provide a safe workplace. However, it was also especially important to be aware of the perspective of the individual employee who may suffer injury as a result of a failure to follow the rules, the Arbitrator said: “There is flesh and blood at stake here, and not just money.”
In view of these obligations, the employer was entitled to a degree of deference with respect to how it meted out industrial discipline in the service of promoting the underlying human and economic interests expressed by health and safety law, the Arbitrator said.
However, viewing the case on its own merits and with a view to what was just and reasonable in the circumstances, the Arbitrator said the union was right.
D.L. had 12 years of discipline-free service with the employer. He accepted full responsibility for what he had done and made no effort to conceal or deny fault. He had perpetrated a “stupid prank,” the Arbitrator said, “But his behaviour did not reflect a calculated defiance of the safety rules.”
Moreover, D.L. was not the only contributor to the accident. D.L. had no idea that closing the window would cause the machine to cycle. “[I]t was S.L. who changed that part of the equation by entering the machine’s interior without first locking out the 12-28 … So while [D.L.’s] prank was the proximate cause of the accident, it was not the only cause, nor was it the only important cause [original emphasis].”
The grievance was accepted. D.L. was ordered reinstated with no loss of service or seniority, but with no compensation for his nine-month absence from the workplace.
Reference: Communications Energy and Paperworkers Union of Canada and Atlantic Packaging Products Ltd. R.O. MacDowell — Sole Arbitrator. James Nyman for the Union. Amanda Hunter for the Employer. May 15, 2011. 20 pp.
