An employment lawyer and workplace investigator reveals the most common HR missteps that contribute to legal issues for organizations
An Ontario arbitrator has reinstated with a suspension a worker who used equipment upon which he wasn’t certified without authorization.
“It puts employers in a difficult position where you otherwise feel that you've got a justified case for termination based on progressive discipline or an egregious act of misconduct, and the response is, ‘Yeah, but no one got hurt this time,’” says Michael Horvat, a partner in the Workplace Law Group at Aird and Berlis in Toronto.
The worker was a labourer at GreenFirst Forest Products, a forest management and lumber company, at a sawmill plant in Chapleau, Ont. The sawmill was a safety-sensitive workplace.
The worker had three instances of discipline on his record between 2021 and 2023 – a written warning for not following his supervisor’s directive, a one-day suspension for failing to wear proper PPE after several reminders, and a two-day suspension for being disrespectful to a co-worker.
GreenFirst shut down the sawmill during the week of July 17, 2023, for maintenance work. An outside contractor with a cube truck was doing some hot welding while a GreenFirst employee stood near the truck to ensure there was no spark that could cause a fire.
On July 18, the worker was assigned to clean up an old fire shack – a small building used by the fire department in case of a fire.
Unauthorized use of vehicle
The worker was having trouble scooping up sawdust and woodchips in the shack, so he decided that he would use a uniloader to do it. The uniloader is a bobcat-sized piece of equipment that required about eight hours of training and practice to be certified on. The worker had received one hour of training from a co-worker two years previously, but he was not certified or authorized to use it.
The worker was aware that it was company policy that an employee could not use the uniloader without proper training that was signed off by a supervisor. However, he claimed that a supervisor had observed him using it after his one hour of training and approved his work with the recommendation that it had to be faster. The worker felt that this meant he was allowed to use it, despite the fact he had not been officially authorized.
The contractor’s welding truck was parked near the fire shack, leaving a small opening between them. The worker borrowed the uniloader from another employee and didn’t do a “circle check” or pretest as there were no documents in the garage. He drove the uniloader to the fire shack and maneuvered it between the shack and the contractor’s truck to pick up some sawdust. However, when he tried to back out, he hit the contractor’s truck, causing scratches and two dents.
The worker hadn’t seen the contractor and assumed he was on a break, but the contractor was inside the truck. According to the employee monitoring the welding, the worker didn’t look back as he was reversing, which the worker denied.
According to the worker, he was in shock and scared. The worker drove the uniloader away and dumped the load of sawdust before driving it back to where he had obtained it. He then went to find the supervisor, but he found that the contractor was already talking to the supervisor about it.
The worker acknowledged the incident and that he had not been assigned to the uniloader or fully trained on it.
Employer investigation
The supervisor and GreenFirst’s safety specialist investigated, but their investigation was impeded by the fact that the worker had moved the uniloader from the accident site. After interviewing witnesses and reviewing training records, they determined that the worker had failed to do a pre-check, wasn’t up to date on training, didn’t immediately report the incident, left the accident scene, didn’t look back when backing up, and was not assigned to operate the uniloader.
GreenFirst determined that the worker’s past discipline showed a “a pattern of making wrong decisions and not following the rules” and this was a “very serious offense” that could have had worse consequences if the contractor had been outside of the truck. The company terminated his employment on July 31.
The union grieved and the worker said that he had learned to think before acting. He also claimed that he was more safety conscious and this was his first incident like this. The union argued that it was the first offence of this nature and the worker’s prior discipline was for unrelated misconduct.
Despite the grievance, GreenFirst handled the matter properly, according to Horvat.
“This employee was subject to progressive discipline and had already been identified as an individual who needed correction, and they conducted a full investigation and made a determination based upon the events where the employee clearly acted beyond his training and without direction,” he says. “That alone, in my view, would have justified significant discipline including discharge, potentially, let alone having also engaged in an accident.”
Multiple safety violations
The arbitrator found that the worker violated multiple serious safety requirements, particularly when he decided on his own to use a vehicle that he was not fully trained on or authorized to use. Although the worker said that he felt comfortable using it and he had received positive feedback from the supervisor previously, the worker knew he needed to be fully trained and signed off to use it by the supervisor, the arbitrator said.
The arbitrator also found that the worker did not have sufficient “care and control” of the uniloader and used it in an inappropriate area that was too small. Whether he looked back or not, he clearly wasn’t able to see enough to avoid hitting the contractor’s truck, said the arbitrator.
The worker added to his misconduct when he failed to leave the vehicle at the scene didn’t report the incident immediately, the arbitrator said.
The arbitrator noted that the worker’s disciplinary record was “troubling,” but it didn’t establish a pattern of disregarding rules that indicated he couldn’t learn from his mistakes. Given that the worker acknowledged his misconduct and understood the gravity of his actions, the arbitrator determined that the likelihood of it happening again was low and the worker could be “a safety conscious and productive employee” with additional training, experience, and discipline.
The consideration of the worker’s disciplinary record raises the issue of whether progressive discipline should be followed for unrelated incidents of misconduct, says Horvat.
“To what degree do different actions lead to moving on a scale of progressive discipline and used as evidence of an employee's basic disregard for or inability to improve themselves with respect to following policy and procedure?” he says. “Should it be evidence of the fact that the employee is not taking direction or improving their overall work performance and new misconduct should still be the next step on the progressive discipline chain?”
Significant suspension sufficient: arbitrator
The arbitrator found that a significant unpaid suspension as part of progressive discipline would serve to send the message that the worker’s actions were unacceptable. GreenFirst was ordered to reinstate the worker with a four-month suspension on his record instead, with a written agreement by the worker that he would not use vehicles without authorization and certification.
“I think directly and implicitly, there was a desire from the arbitrator to give this person one last chance and she was satisfied that he had acknowledged the severity of his actions and that it wouldn't happen again,” says Horvat. “I think that was probably the only thing that likely saved his job.”
It’s also likely that the fact that there was no serious outcome from the misconduct helped his cause, adds Horvat.
“This is oftentimes an employer concern in a termination where the ultimate damage that was done was not as serious as it could have been,” he says. “But discipline shouldn’t be dependent upon the severity of the damage or injury that was done, because that implicitly leads to a conclusion that that a near-miss is not indicative of a poor decision.”
However, this decision shouldn’t discourage safety-sensitive employers from treating safety concerns as seriously as GreenFirst did here, according to Horvat.
“At the end of the day, you still have to manage your business, and proper management means looking out for safety,” he says. “Sometimes you need to make that difficult decision, but that doesn't mean you should be dissuaded from making what you consider to be the proper and just decision in the first place.
“The arbitrator happened to disagree with the ultimate penalty, but not that this person should be disciplined - it's sometimes an unfortunate arbitral premise that a lengthy suspension is as good as termination.”
