Termination decision was made before worker had opportunity to respond to incident
A B.C. arbitrator has overturned a worker’s dismissal for causing damage with a snowplow but substituted a 10-day suspension for the serious misconduct.
Scott Nydegger, 57, started working for Yellowhead Road & Bridge (YRB), a highway and bridge maintenance company in Fort George, B.C., in 2014. He was a machine operator for the winter season from late October to late March or early April.
Nydegger’s disciplinary record included three one-day suspensions in 2018 for causing minor damage with a snowplow, a 2019 letter for clipping a driver’s side mirror while backing up, and an October 2020 two-day suspension for smoking in his vehicle — a violation of company policy.
On Nov. 8, 2020, Nydegger was driving a YRB plow truck on a sunny day. YRB’s answering service received a call mid-morning that said a YRB truck had hit someone’s trailer while passing him with the plow blade down. The truck number and the area corresponded to Nydegger’s assignment that day.
The general manager spoke to Nydegger, but Nydegger wasn’t aware that anything had happened. He said there was no way it was him and suggested it was someone else.
The general manager visited the complainant’s place of business and examined the trailer, finding a scrape that was exactly the height of the plow blade on Nydegger’s truck. The general manager estimated the damage to be almost $2,000, but the claim ended up being more than $6,000.
Skipping progressive discipline steps led to the unjust dismissal of an Ontario worker.
Worker not aware of damage
YRB decided to terminate Nydegger’s employment prior to his next shift, referring to four other disciplinary incidents in the past 18 months. The general manager contacted Nydegger, who reiterated that he wasn’t involved in the incident.
The general manager spoke to Nedegger again, and Nydegger said that he had passed a semi-trailer that was travelling 20 km below the speed limit. He pulled out as far to the left as he could and accelerated past the truck, although a short distance later the highway expanded from two to four lanes. He said he didn’t notice scraping the truck. He added that he would only take responsibility if any damage was on the back corner of the trailer.
Nydegger grieved his termination, arguing that he hadn’t been aware of the damage, not that he had denied it.
The arbitrator accepted that Nydegger wasn’t aware of the damage because the noise of the large vehicles and the attachment of the plow blade to his truck made it possible that a light scrape went unnoticed. Because of this, he wasn’t trying to avoid responsibility but instead just didn’t know what happened, the arbitrator said.
However, the arbitrator found that Nydegger’s actions in passing the truck were unsafe and unnecessary. In addition, Nydegger’s disciplinary history wasn’t good, said the arbitrator.
The arbitrator determined that YRB’s investigation was lacking — the driver of the semi-trailer wasn’t interviewed and the decision to terminate Nydegger was made before he gave his version of the incident. In addition, YRB misrepresented his disciplinary history — only two incidents were in the past 18 months.
The arbitrator found that termination was excessive, but the seriousness of the misconduct and Nydegger’s disciplinary history deserved a 10-day suspension. See Yellowhead Road & Bridge (Fort George) Ltd. and BCGEU (Nydegger), Re.
Ontario worker should have received a warning letter instead of a one-day suspension for a safety breach and back talk, says an arbitrator.
