Intent versus result
When disciplining an employee for a safety violation, should it matter whether the employee was intentionally reckless or just careless if someone is hurt or killed?
Aug 21, 2012
By Jeffrey R. Smith
Health and safety is — or should be — a major concern for employers.
There is plenty of legislative protection for employees that dictates the precautions employers must take to ensure their workplaces are safe to work in, not to mention the benefits that can come with employees who stay safe and healthy.
Recently, I discussed the liability of employers who have taken the precautions — through workplace policies and employee training —expected of them, but have employees who fail to follow instructions, leading to dangerous situations in the workplace despite the employer’s efforts. If this happens, what should the employer do? Discipline is an obvious option, but how serious should it be?
Unsafe situations can be caused by employees deliberately ignoring safety instructions, employees who are simply careless or employees who unintentionally fail to follow all procedures. Though these different situations could be seen as having differing levels of culpability, the end result could potentially be the same — a dangerous workplace that could lead to serious injury or worse.
Earlier this year, a British Columbia logging company fired one of its tree fallers after a tree he fell hit a co-worker. Company policy was for a faller to ensure his companion had retreated to a safe distance by observation and making eye contact before proceeding. The tree faller had told his co-worker he was going to fell the tree and saw the co-worker walking towards the safe spot. However, the co-worker hadn’t heard him and turned back towards the tree. The faller assumed the co-worker continued to the safe location and proceeded to take down the tree. The tree hit the co-worker, injuring his leg. Had the tree not been deflected by another tree, it might have been a fatal blow.
WorkSafeBC issued orders against the faller and the company for failing to follow safety procedures. After an investigation, the company dismissed the faller for not following proper procedures by ensuring the co-worker understood him and was in the safe location before proceeding with felling the tree. It also took into account the fact the faller had been suspended previously for safety concerns.
However, an arbitrator ordered the company to reinstate the faller with a suspension. The faller was reckless for not following through with the full procedure, but was aware of safety procedures and thought he was following them, said the arbitrator. Since he was remorseful and didn’t “deliberately disregard” safety procedures, termination was too harsh and he could likely return to work as a safe and productive employee.
This case raises some interesting questions. Felling trees is a pretty serious business, and the failure to follow procedures through to the end in the above situation almost resulted in someone getting killed. In such a dangerous situation, does it matter if the employee follows part of the safety procedure but — unintentionally or not — doesn’t follow it through? One would think the most important part of the procedure would be to visually ensure the co-worker is in a safe place before taking down the tree. Should the intentions or remorse of an employee for a safety violation be a factor in deciding the extent of the discipline, if the result of the employee’s actions could be serious injury or death?
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at firstname.lastname@example.org or visit www.employmentlawtoday.com for more information.
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Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.