Did safety transgression justify firing?

This instalment of You Make the Call takes a look at an arbitration case where a worker was fired for not following safety procedures

The worker was a quality technician at Invista Canada in Kingston, Ont., a company that manufacturers nylon products. He had been on the job for more than 16 years. Near the end of his shift on June 7, 2006, he noticed one of the wrapped cartons of nylon had fallen off a travel car. As a result, the carton was in the path of the travel car and the car could not then perform its function.

The worker decided he would move the 200-pound carton out of the way. In order to cross into that work area, he was required by safety rules to perform a lockout procedure to ensure the machinery wouldn’t start running when he was in the area.

Ray Young, a method quality expert at Invista, noticed the worker had crossed into the area to move the carton, and also noticed that the proper lockout procedure hadn’t been followed. Young spoke to the worker and asked him if he had locked out the machinery. The worker said the travel car had been put into manual mode, so it wouldn’t move.

But the problem with that was another worker could have come along and put the car in motion. A proper lockout would have ensured the car could not move until the worker who locked it out unlocked it.

The employer began an investigation into the incident. It decided to discharge the worker. In doing so, the employer relied on the worker’s record which included a written warning for multiple safety infractions and a one-day suspension for not following the attendance program and for providing false information during an investigation.

After receiving the letter, the worker wrote letters of apology to the employer and to the union. He apologized for the “disruption, time and expense the company has had to deal with in this matter.” He asked for a second chance and promised he could be a model employee. Up until the arbitration hearing, there was little evidence that he challenged the version of events the employer relied on in the letter.

But when it came time for the arbitration hearing, the worker changed his tune. He testified that he had indeed tried to lockout but because he was unfamiliar with the area he was working in that day, he locked the wrong panel. But the arbitrator didn’t buy the change in his story, calling it “not plausible.”

You make the call

Was termination an appropriate penalty?
Should the arbitrator substitute a lesser penalty?

If you said termination was an appropriate penalty, you’re right. The arbitrator took into account the worker’s seniority and disciplinary record, whether the failure to lockout was deliberate, whether the worker acknowledged the full extent of his failure and expressed or exhibited a credible intent to follow safety procedures.

“I am concerned that, notwithstanding the (worker’s) seniority, the circumstances do not reflect a likelihood that (he) will follow safety procedures in the future,” the arbitrator said. “Although (he) does not have a lengthy disciplinary record, he has had a warning for various safety violations.”

The arbitrator said the evidence suggested that either he does not understand the safety requirements when he says he does or, if he does understand them, he does not follow them where he determines it is not necessary. The arbitrator said the worker’s false testimony was an “aggravating factor” to be considered with all the other factors in determining an appropriate penalty.

“In a case such as this where there is a breach of an important safety procedure, where the record reflects a prior lack of integrity, and where the testimony before me suggests the conduct may be repeated, I have no choice but to uphold the discharge,” the arbitrator said.

For more information see:

Kingston Independent Nylon Workers’ Union v. Invista Canada, 2006 CarswellOnt 4611 (Ont. Arb. Bd.)

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