'The stakes are really high in these cases'
An Ontario arbitrator has upheld the discharge of a long-term mining employee for a serious safety violation due to the lack of confidence that the worker had learned his lesson.
It’s an example of how safety can take priority in a high-risk workplace over other mitigating factors, says Lorenzo Lisi, partner and leader of the Workplace Law Group at Aird & Berlis in Toronto.
“Long service and the absence of prior discipline pale in significance to [an employee’s] calculated determination to err on the side of risk, contrary to all of his training as a trusted employee, and to ignore the possibility, if not the probability or certainty, that he was disregarding requirements that the employer enforced,” says Lisi. “I think it's really demonstrative of the fact that arbitrators are going to have a high standard when they're looking at reinstating somebody for a serious health and safety violation, because the results aren't just the loss of a job – it could be loss of life.”
Safety and discipline policies
The worker was employed with Sudbury Integrated Nickel Operations (SINO), a mining and smelting company based in Sudbury, Ont., at its Fraser Mine since 2007. He received a large amount of training during his employment, including for risk management, due diligence, occupational health and safety legislation, and working at heights.
SINO had a discipline program that outlined the type of discipline for various types of infractions. For health and safety infractions that could “clearly result in a fatality,” discharge was the prescribed action. The worker had no discipline on his record.
SINO also had policies that required work authorization for certain work permits, including a working from height permit. The latter was required when employees worked at heights greater than two metres while outside the protection of a fixed-access platform with handrails.
The worker was off work for 18 months in 2019 and 2020 due to medical reasons, during which his working-at-heights accreditation lapsed – such accreditation had to be renewed every three years.
On Feb. 10, 2021, the worker and a colleague were moving copper ore on a tram with 10 cars to a dump, where ore was dropped down a hole to a crusher 300 feet below. The crushed ore would then be brought to the surface in a skip.
As each car moved over the dump, they were elevated so the hinged floor of the car opened and discharged the ore to fall through the hole. As the tram moved, a monorail caused each car’s floor to close upward and resume riding on its wheels.
Stuck over a deep hole
However, the sixth car in the tram became hung up over the dump’s open hole. A piece of ore was wedged in the car’s bottom door and lodged against the monorail, which stopped the train.
The worker asked his colleague to go over to a surveillance camera and block it. The colleague stood in front of the camera, but he failed to block it completely. The worker then stood on the side of the stuck tram car and leaned over the edge facing into the car over the hole.
Eventually, they were told to leave the tram for another crew to deal with.
The logistics general foreman of the mine reviewed the surveillance video the next morning, which showed the worker standing on the side of the car and leaning over and into the space. He learned that neither the worker nor his colleague had completed a working-at-height permit before attempting to clear the blockage.
The foreman felt that by standing on the side of the stuck car, the worker was in a working-from-height situation over the open hole of the dump, with a potential fall of 300 feet. He interviewed all of the employees involved, including the worker.
Worker downplayed risk
The worker admitted that he had asked his colleague to cover the surveillance camera since he was unsure if it was an open-hole situation. He said that he hadn’t looked for a safety lanyard because the tram car “was safe because of the chunk.” He eventually acknowledged that it was an open hole, but said he was trying to get things back to working safely.
The worker didn’t apologize, but he said that if the situation happened again he would “shut things down and ask for procedures.”
SINO issued a global safe alert outlining the incident, calling it an “extremely high potential risk incident that could have resulted in a fatality.”
SINO determined that the worker had been reckless in a high-risk situation and didn’t follow requirements on personal protection equipment and entering danger zones. It terminated his employment on Feb. 18.
SINO did well to emphasize safety and investigate the incident, but one thing it could have done better is to ensure that the worker received his recertification for working at heights that had lapsed, says Lisi.
“But for an employee of his service and with his experience, that didn't tip the balance even though he didn't have that upgraded training,” he says. “Despite that fact, it didn't matter, he knew better, and at the end of the day, he didn't really acknowledge the risk.”
The worker filed an unjust discharge grievance, saying that he had made a bad decision for which he “humbly apologized.” He said it would never happen again, but also maintained that he didn’t believe there was a risk of the car dropping into the hole as the monorail was holding it up. He also said that SINO had not developed a standard operating procedure to address that type of situation.
Safety breach
The arbitrator noted that the worker acknowledged in his investigation interview that there was an open hole that dropped 300 feet in the incident, and he reiterated that in the hearing. As a result, SINO’s position that the worker was engaged in unprotected activities over and near an open hole in contravention of SINO protocols and health and safety legislation was reasonable, said the arbitrator.
However, the worker maintained that he could not have fallen through the floor of the tram car or the hole, which was a contradiction or an attempt to downplay his failure to comply with safety requirements, the arbitrator said, adding that this raised concerns over the worker’s insistence that he wouldn’t repeat his misconduct.
“[The worker] argued he was not in an unsafe position when standing on the car and there was no risk of falling into the open hole, and the arbitrator just didn't buy it,” adds Lisi.
The arbitrator also pointed out that the worker acknowledged in his interview that it was an open-hole situation, but didn’t explain how he had come to that conclusion if he didn’t recognize that fact at the time of the incident. In addition, the fact that the worker asked his colleague to obscure the surveillance camera led to the conclusion that he knew at the time that he was violating safety protocols, the arbitrator said.
Risk of repeat misconduct
The worker’s inconsistency hurt his credibility, which is particularly important where safety is involved, says Lisi.
“For any safety-related offense, the most important mitigating factors are those that will address the probability of the [worker] repeating the same type of offence,” says Lisi. “Arbitrators need to understand that if somebody does something significant, whose actions could have caused not only serious injury or death to him but could have resulted in serious prosecution of the company under the Occupational Health and Safety Act, it won’t be repeated – the stakes are really high in these cases.”
The arbitrator determined that the worker’s behaviour during the incident, the ensuing investigation, and at the hearing did not provide assurance that he wouldn’t repeat his misconduct. Given the importance of safety in the mine environment, discharge was an appropriate consequence, said the arbitrator.
Lisi emphasizes three key points for employers to come out of this decision.
“Number one, make sure that you have policies and procedures in place which are updated and of which employees have knowledge – and the union in this case,” says Lisi. “Number two, conduct an appropriate investigation to ensure that you have all of the details with respect to the alleged misconduct, and number three, apply the principle to be the safest that you can be – even if not everything is absolutely perfect, you need to try to enforce the highest safety standard possible.”
“It comes right down to [safety] – it's all about that,” adds Lisi. “It all comes down to how, as an arbitrator, am I going to put you back to work in a safety-sensitive environment and not worry that this is going to have an impact down the road?”
See Sudbury Mine, Mill and Smelter Workers, Local 598, Unifor and Sudbury Integrated Nickel Operations (Luttrell), Re, 2022 CarswellOnt 13458.
