Safety violations demonstrate probationary employee’s unsuitability

Employee was trained on safety procedures but didn't follow them not long after being out on his own

An Alberta employer had the right to dismiss a worker who was injured after not following safety procedure while still on probation, an arbitrator has ruled.

The worker, Nicholas Zerebeski, 23, was hired on March 18, 2013, by Telus Corporation to be a service technician-apprentice to do installation and repair work in central Alberta around Eckville, Alta. Between 40 and 60 per cent of the work was performed at heights on overhead telephone lines.

Zerebeski took a 12-week training course to learn the ins and outs of his job, as well as riding along with another technician for a week. Part of the training included a one-week course on working aloft that went over equipment and safety procedures, in which Zerebeski did well because he had some climbing experience. Working aloft safety procedures included requirements for workers to tie themselves in with a body belt, harness with a bungie, and a ladder all secured to the cable or pole.

At the end of a training week after which trainees would be dispersing to their own regions for some additional training, Zerebeski made a comment to his fellow trainees that included a slur against gay people. Zerebeski’s manager spoke to him about it and he apologized to her and to the class when they met again.

Trainees were supposed to work in the field with experienced technicians for five to six weeks before assuming their duties on their own. However, because Zerebeski did so well in his training and had previous experience, he was allowed to begin working on his own after only two weeks shadowing another technician.

Zerebeski worked on his own for about two weeks when, on July 22, 2013, he was assigned to low-hanging telephone lines at a residence. He followed proper procedure to secure himself when he climbed up to secure a new service line along a messenger cable. However, at another spot, noticed he hadn’t cut a service line to the house. He reached over to cut the line without tying himself in and when the line was cut, it released some tension and caused the ladder to bounce. Zerebeski lost his footing and slid down the ladder about 20 feet, breaking his leg at the bottom. He also wasn’t wearing his safety boots.

Zerebeski was taken to the hospital, where he had surgery on his leg. His manager arrived and he told her it was his fault because he hadn’t used his bungie. His manager then spoke to a resident at the house who had witnessed the ladder bounce and cause Zerebeski to fall.

The manager met with Zerebeski at the hospital after his surgery so she could file an accident report, and Zerebeski described the accident, admitting he had used poor judgment and should have been strapped in. Zerebeski later claimed he didn’t remember this conversation and that he was actually tied in and just lost his footing.

A few days later, Zerebeski’s manager told an area service manager about the accident, and the service manager said she wasn’t surprised because she had audited one of the training courses and noticed Zerebeski hadn’t been paying attention.

On Aug. 19, Telus informed Zerebeski that he wouldn’t qualify for his next scheduled progression salary increase because he had failed to follow safe work practices.

A few days later, a speeding ticket issued to Zerebeski for going 93 kph in a 50 kph construction zone was found in his company truck. Zerebeski later said he had voluntarily paid the fine rather than contest it. This violated the Telus employee handbook, which stated employees were to tell their manager of any driving violations so the manager could review and determine if disciplinary action was required.

Zerebeski received workers compensation benefits until Jan. 9, 2014. During this time, his manager considered the speeding ticket and his failure to follow safety procedures. At the time of his accident, Zerebeski hadn’t yet completed his 120-day probationary period and the collective agreement permitted Telus to terminate a probationary employee without cause if the employee was deemed to be unsuitable or unsatisfactory. As a result, the manager determined Zerebeski wasn’t suitable for permanent employment with Telus and, when Zerebeski was ready to return on Jan. 9, terminated his employment due to unsuitability.

The arbitrator found that Zerebeski was given a fair opportunity to demonstrate his suitability for the job with Telus. The company provided an extensive training program that included “direction and guidance on the company’s rules, policies, procedures, practices and expectations,” with emphasis on safe work practices, as well as practical training and shadowing of experienced technicians. Zerebeski was familiar with the company’s expectations and agreed he was ready when Telus allowed him to work on his own, the arbitrator said.

The arbitrator also found that Zerebeski’s initial admission to his manager was supported by the witness’ account, and his later version was self-serving and an attempt to distort the truth.

The arbitrator found the service technician position required someone who could work independently without supervision, and the fact Zerebeski’s safety violations — the failure to tie himself in while working aloft and the speeding ticket — were both done while he was working on his own. This demonstrated during the probationary period that Zerebeski was unsuitable for this amount of responsibility, said the arbitrator.

The union also claimed Zerebeski was disciplined twice for the same misconduct, pointing to the denial of his progression salary increase as the first instance of discipline. However, the arbitrator found dismissal during the probationary period was not disciplinary, but rather about suitability.

In addition, the arbitrator determined Telus didn’t unreasonably delay the termination as it waiting until he recovered from his injury before dismissing him. The company also didn’t discriminate against Zerebeski because of a disability, because the decision to terminate wasn’t because of his injury — as evident by it waiting until he was able to work again — but rather because of unsuitability, as was its right during the probationary period. The only adverse impact Zerebeski experienced was the delay in the decision, during which he was receiving benefits. See Telus Corp. and TWU (USW, Local 1944) (Zerebeski), Re, 2016 CarswellAlta 178 (Alta. Arb.).

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