Worker's mistake a factor, but B.C. employer didn't clarify circumstances
A British Columbia employer’s suspension of a worker for three days for a safety infraction was excessive because of the employer’s incorrect assumption of the circumstances around the incident, an arbitrator has ruled.
The worker was an employee of Rio Tinto Alcan at a plant in BC. He was hired in 2009 and became a regular employee three years later.
Over the course of 2015, the worker received a written warning for an unauthorized absence, a one-suspension for unacceptable behaviour, and a one-day suspension for another unauthorized absence. In 2016, he was absent without authorization a third time and received a one-day suspension and he was suspended for one day in 2020 for leaving work without permission.
Rio Tinto’s discipline guide stipulated that employee discipline records must always be considered and progressive discipline should be used, but if 18 months elapsed between two instances of discipline, an employee’s level of discipline would be reset.
A two-week suspension for a safety breach was excessive for an employee who accepted responsibility and co-operated with an investigation, an arbitrator ruled.
Block of wood damaged windshield
On Oct. 16, 2020, the worker was investigating a workflow issue when the worker approached him from several car lengths away. The worker threw a block of wood about nine inches long and weighing four pounds that hit the windshield of a buggy.
The co-worker had been leaning out of the buggy’s cab with one foot on the ground about 10 feet from the worker, so the worker tossed the block of wood underhand because it should have been in the buggy.
The windshield was already damaged, but the block of wood shattered it, so the worker and a co-worker removed it after the supervisor took pictures of it. The worker stated that he did it and took responsibility for it, and the supervisor asked the employees for written statements.
The co-worker’s statement said that the worker tossed a wood chunk to him, but it hit the buggy windshield. He said that the windshield had pre-existing damage and the wood chunk caused another crack, so they removed the glass to prevent a mess.
The worker’s statement said that he was passing the block to his co-worker and it “missed his hand and hit the window.” He agreed that the window was previously shattered and he reported it immediately.
Another employee who had been nearby wrote that the worker and his co-worker were playing with a block of wood. He turned around when he heard a noise and saw the block on the windshield.
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Investigative interviews
The supervisor interviewed the two employees involved and asked the co-worker “Who was playing with you?” to which the co-worker responded that he didn’t say they were playing although the worker threw the block. The co-worker acknowledged that the actions were inappropriate and unsafe, and Rio Tinto decided to coach him rather than issue discipline.
In the worker’s interview, the worker said that he wasn’t throwing to hurt anyone but “having good morale with the crew is not a bad thing.” He reiterated that the windshield was already damaged and the activity wasn’t unsafe because the co-worker knew the block was being thrown to him.
Rio Tinto suspended the worker for three days because he threw the block, caused the damage, and didn’t acknowledge that his actions were inappropriate or unsafe. The company also considered his disciplinary record.
The worker said that he had admitted that it was mistake, he reported the incident immediately, and the windshield was already damaged. He disagreed that he showed no remorse, as he took full responsibility.
A customer service representative who treated a client poorly without remorse deserved a lengthy suspension, even though it was a first offence, according to a grievance settlement board.
Worker not playing: union
The union grieved the suspension, arguing that Rio Tinto had not proven that the worker was reckless or playing. The company didn’t ask about the reason for throwing the block of wood or try to clarify the circumstances. The worker maintained that he would not have done it if he believed that there was a risk to his co-worker, but he acknowledged that he would do it differently now.
The arbitrator found that it was unlikely that the worker was “playing” with the block of wood. Neither the worker nor the co-worker said that they were and the other employee was not interviewed to clarify his statement that they were playing. The co-worker denied that they were playing and this was not raised in the worker’s interview, said the arbitrator, adding that the supervisor assumed that they were playing without probing further.
The supervisor also assumed that the worker’s reference to his actions being “good for morale” were taken to be a reference to “playing,” but it was possible that the worker meant that helping his co-worker put the wood blocks into the buggy was good for morale, said the arbitrator.
The worker had prior discipline including suspensions, didn’t directly apologize, and tried to deflect some of the seriousness by emphasizing the pre-existing damage – which was irrelevant since his actions were still unsafe, the arbitrator said.
A five-day suspension for disruptive behaviour should not be reduced due to the employee’s lack of remorse, an arbitrator found.
Error in judgment
The arbitrator noted that the worker’s method of helping the co-worker by tossing the block instead of handing it to him was inappropriate and unsafe – an error in judgment that deserved discipline. However, Rio Tinto’s discipline was based on an erroneous assumption that the worker was playing rather than helping a colleague, said the arbitrator.
As a result of that erroneous assumption, the three-day suspension was excessive discipline, the arbitrator found. While the incident was serious and the worker had a past disciplinary record, the arbitrator determined that a one-day suspension was more appropriate. Rio Tinto was ordered to compensate the worker for two days of lost pay. See Rio Tinto Alcan Inc. v. Unifor, Local 2301, 2022 CanLII 125984.
