'It's really important… to show awareness of mistakes and a willingness to reform'
“Unapologetic behaviour after committing a serious safety offence that can lead to serious harm does not invoke a sense of trust that an individual is taking the incident seriously or will try to avoid that type of behavior in the future.”
So says Kayla Ueland, a labour and employment lawyer at McLennan Ross in Calgary, in reference to an Alberta arbitrator’s decision to uphold the dismissal of a worker who intentionally startled his manager by moving a forklift when the manager was nearby – and violated a key safety rule in the process.
“Remorse and acknowledgment are factors that arbitrators obviously consider when determining whether a termination of employment is too harsh, and whether termination is appropriate for a serious safety infraction,” says Ueland.
“One of the most important mitigating factors is the probability that a [worker] will commit a similar offence in the future.”
Incident with manager
The worker was an equipment operator for Waste Management of Canada (WMC), a waste treatment and disposal company operating a recycling facility in Red Deer, Alta. He was hired in 2013 and went through operator safety training and occupational health and safety training.
WMC had a list of life critical rules (LCRs) for employees to follow. One of the rules for heavy equipment operators was to “always maintain safe distance from people, vehicles, and other [heavy equipment].” The collective agreement also had rules for recycling facilities that required heavy equipment operators to remain 15 feet away from personnel. Safety rules were posted in work areas.
In February 2020, WMC adopted a zero-tolerance policy for the LCRs because seven employees globally had died in work accidents, with two of them in Canada.
In late 2019, the worker was suspended for yelling and cursing at a lead operator and he received a verbal warning for using unprofessional and heated language with the lead operator.
Read more: A worker’s multiple safety violations outweighed his 37 years of service, said an Ontario arbitrator in upholding the worker’s dismissal.
On May 28, 2021, the worker was operating the facility’s pay-loader. His supervisor, the district manager, walked into the area as the pay-loader backed out of a bay door. The worker brought the pay-loader to rest and the manager walked over to ask about a delay in unloading a truck. The pay-loader was running, but it was disengaged with the hand brake on, which was considered inactive.
The worker started feeling that the manager was hounding him and said he had to get back to work. He closed the pay-loader’s door while the manager was standing beside it.
With the manager still beside the pay-loader, the worker raised its bucket a couple of feet and then lowered it. The manager stepped back, but stayed within talking distance. The worker then exited the pay-loader and they resumed talking.
The manager felt threatened as he claimed he was standing “a couple of steps” away from the loader and he said that the worker had also articulated the front wheels in his direction.
The manager discussed the incident with his colleagues and they sent the worker home for the rest of the day. They viewed a surveillance video of the incident and interviewed the worker the following Monday.
No remorse or acknowledgment
The worker said he had done nothing wrong and he saw the manager turn away before raising the pay-loader’s bucket. He acknowledged the rules about operating too close to a person, but claimed that lifting the bucket wasn’t technically operating the loader. However, he conceded that lifting the bucket would indicate that he intended to move the loader and he didn’t check to see that the manager was gone.
The worker also admitted that he intended to startle the manager to make him aware that he intended to move, although he denied articulating the wheels, explaining that the hydraulics may have caused it. He felt that there was no danger because the loader couldn’t “jump six feet to the left.”
The worker’s insistence that he hadn’t done anything wrong made it difficult for WMC to trust that he wouldn’t repeat the behaviour, says Ueland.
“Especially in cases such as this, where the root cause of the safety incident stems from the individual's anger or frustration, it's really important for [workers] to show awareness of these mistakes and a willingness to reform their behaviour to rebuild an employer's trust, so that incidents like this will be controlled and avoided in the future.”
Management decided that the worker deliberately violated the safety rules. On June 3, WMC terminated the worker’s employment for violating the LCR requiring a safe distance from people before operating equipment – a rule for which violation resulted in immediate termination.
There were a few things that WMC did right, such as ensuring that the worker and other employees received regular safety training, posting the safety rules in the workplace, and properly investigating the incident while giving the worker the opportunity to explain his behaviour, according to Ueland.
The union grieved the termination, arguing that it was the manager who violated the safety rule by approaching the pay-loader. It also argued that the worker told the manager that he was getting back to work and the up-and-down motion of the bucket did not constitute operating the loader.
The arbitrator noted that the video surveillance demonstrated that the worker had raised the bucket with the manager standing close by, and the manager appeared startled by stepping back. In addition, it was clear that the conversation had become heated.
The arbitrator found that the worker intended to startle the manager, as he stated in the investigation meeting, and he didn’t just raise the bucket but articulated the wheels – the worker’s suggestion that the articulation was accidental wasn’t convincing.
In addition, the pay-loader was disengaged and the bucket wasn’t raised, so there was no reason for the manager to think it would be put into motion. The manager was the worker’s supervisor and had reason to approach him, the arbitrator said.
Read more: A B.C. labour board reinstated a nurse fired for misconduct, despite the fact that the nurse didn’t apologize until the arbitration hearing.
The arbitrator agreed that the WMC had cause to discipline the worker, likening the worker’s behaviour to road rage and, since the manager knew the worker was angry, it wasn’t surprising that he would be afraid about what he might do next.
The arbitrator noted that while the previous disciplinary incidents weren’t safety-related, they showed “a lack of civility and disrespect on the job, of the kind that can cause conflict and ill-thought-out reactions.”
“Typically, [prior] discipline will be relied on more heavily in cases where the discipline is for behaviour of the same nature that led to the termination of employment,” says Ueland. “For example, in this case, the [worker] had two prior disciplinary records that on his employee file which were related to unprofessional behaviour of yelling and disrespect – while these did not relate to the safety incident that occurred, the arbitrator ended up tying those discipline behaviours back to the incident because the incident involved the [worker] becoming heated and frustrated with the district manager, which then resulted in the [worker] deliberately causing the district manager alarm.”
The arbitrator also found that there was no evidence of a lack of uniform enforcement of the rules and the worker never apologized or showed awareness that he had done anything wrong. All of these made it unlikely that an ongoing employment relationship could be restored, said the arbitrator in upholding the termination.
3 takeaways for employers
Ueland emphasizes three key elements in this decision of which employers should take note.
“Termination of employment for a willful or deliberate breach of a serious safety infraction is likely appropriate, even where there's no physical injury or actual harm to anyone,” she says.
“Secondly, termination of employment will also likely be appropriate where an employee is not taking accountability for his or her actions and cannot be trusted to not repeat the misconduct in the future.”
“And lastly, discipline for safety violations, even serious ones, should not be approached from a zero-tolerance perspective – such incidents should be investigated and decisions must be proportional and contextual in the circumstances.”
See Waste Management of Canada Corp. and Unifor, Local 4050 (Craig), Re, 2022 CarswellAlta 1086.