Assistant manager didn’t consent to lifting of wheelchair-bound worker on forklift but didn’t expressly ban it
An Ontario employer should not have fired a manager after employees carried out an unsafe activity on his watch, the Ontario Superior Court of Justice has ruled.
Kerry Barton, 67, was hired by Rona Ontario, a home renovations supplier, to be a zone manager in September 2005. In December 2005 Barton was appointed assistant store manager of a new Rona store in Barrie, Ont. Barton was responsible for managing the store’s employees and the safety of the workplace.
Rona’s employee handbook had several safety rules that employees must follow. These included having safety guards in place when operating machinery and no riders on forklifts or tractors. The company’s guidelines for conduct indicated that breaching the rules would result in discipline and possibly dismissal, if it was serious enough. Examples of serious breaches included failure to operate power equipment safely and deliberate acts that could endanger the safety of other people.
Barton also took safety training for forklifts that taught him passengers were not permitted and approved safety cages had to be securely fastened to the forks if lifting a person.
In April 2009, Rona scheduled a computerized training program at the store’s training centre. The training centre was on the store’s second floor mezzanine and there was no access for a particular employee who was in a wheelchair. Barton wanted to ensure the employee received the training, so he arranged to have another employee train the wheelchair-bound employee.
On April 16, Barton was overseeing a special event at the store and was particularly busy. The employee and a co-worker approached him and suggested that the employee could be lifted to the second level with a forklift to attend the training. Barton wasn’t comfortable with the idea and thought they should stick with the original plan of having another worker train the employee, though he didn’t tell them not to do it. Before the conversation was over, Barton was called away.
Employees went ahead with plan
The next morning, the employees obtained a forklift with the intention of lifting the wheelchair to the second level. The store’s operations manager told them not to do it, but was called away to deal with a customer. After he left, the co-worker tied the wheelchair to the forklift and raised the employee in the wheelchair to the upper level.
Barton arrived at the store later that morning and when he went to his office on the second level, he saw the employee in the wheelchair. The employee claimed Barton didn’t seem to be upset. After the training session was over, he consented to the co-worker’s request to lower the employee in the wheelchair without tying him to the skid in order to save time. The employee agreed because the wheelchair had brakes.
The operations manager reported the incident to Rona’s HR advisor, who investigated and spoke to everyone involved. Barton stated he wasn’t at the store when it happened, but admitted that he should have specifically told them not to go through with it. He also pointed out that everyone had the best intentions and wanted the wheelchair-bound employee to receive the training. He and the operations manager also stated that it wouldn’t happen again.
Rona was concerned with the risk to the employee as well as the public — the area where the lift was done wasn’t secured — along with the breach of the company’s safety rules. The company expected Barton to follow and administer those rules and by not prohibiting the lift, he failed in his managerial duty, breached his employment contract and exposed Rona to liability under Ontario’s Occupational Health and Safety Act. For these reasons, Rona lost faith in Barton’s ability to be an assistant manager and terminated his employment, along with that of the operations manager.
The court acknowledged that Barton’s misconduct was serious and warranted a response from Rona to make the point that safety was important. However, it noted that he had good performance appraisals and no disciplinary record, and he didn’t give express permission for the lift, nor was he present. There was no reason to believe that lesser discipline wouldn’t convey the safety message or that Barton wouldn’t learn his lesson and repeat his misconduct, said the court.
The court considered Barton’s age, the importance of his position and the difficulty in finding similar work and found he was entitled to 10 months’ notice. Minus some pay Barton received from a lesser position he found later, Rona was ordered to pay $54,580 in salary plus benefits. The court declined to award moral damages because it found Rona had a reasonable basis to believe it had acted in good faith to uphold safety in its workplace.