Worker fired for unsafe behaviour

Arbitrator sides with employer that was trying to improve safety record, comply with Ministry order

An arbitrator refused to award a worker his job back after he tampered with machinery, in direct violation of an order from the Ontario Ministry of Labour, in order to make his job easier.

Peter Schramm was fired by Canadian General Tower Ltd. after he taped down a button on a paper re-reeler on April 21, 2002.

Arbitrator Rick MacDowell of the Ontario Arbitration Board said the company had a less than stellar safety record in the workplace, but had been working closely with its union and the Ministry to make the workplace safer following a string of charges and convictions under the Occupational Health and Safety Act.

In 1993-94 Canadian General Tower was convicted of breaching the act and fined $25,000. In the same time period, more charges were laid but it did not go to trial. The Ministry withdrew the charges with the understanding that the company would spend an additional $100,000 on safety improvements and employee training.

In 1998 there was another accident resulting in 10 charges carrying a potential fine of $5 million and jail time. Ultimately the charges were resolved on the basis of a guilty plea to one of them and a financial penalty of $112,000. The judge in that case was impressed by the company’s forthright acknowledgement of responsibility, the significant sums the company had spent to improve workplace safety and by the company’s good working relationship with its union and the Ministry. The history of safety violations and fines had, in short, put the company on the offensive in being proactive when it came to safety.

“The company was ‘in the spotlight’ and ‘under the gun’ because of the previous accidents, the previous convictions and its several undertakings to improve its safety performance,” wrote Arbitrator MacDowell in his decision.

But in 2001 there was yet another accident. An employee became entangled in machinery and broke his arm in several places. That accident was caused because someone had taped down a “jog” button on a machine, allowing it to run without the operator having to stand there with his finger on the button — Schramm, the subject of this arbitration, was not directly involved in that accident though he was an employee at the time.

An inspector for the Ministry issued a number of orders as a result of the 2001 accident. Among those orders was a direction prohibiting any tampering with the jog buttons. The relevant order read: “The employer shall ensure that the jog button on the paper rewinder is not made ineffective by the use of duct tape to tie it down. Comply forthwith.”

The orders were posted on the employee bulletin board and provided to the joint health and safety committee. The employer took the further step of penning a letter, signed by the union and the company, outlining the concerns from the 2001 accident and how employees were expected to behave.

The letter was presented to each operator individually at meetings called for the purpose of discussing the issues raised in the letter one-on-one.

Despite all of this Schramm taped the jog button down while working on April 21, 2002. He wasn’t injured, but he left the button taped down when his shift ended. The next person to use the machine was slightly injured — and more than a little shocked — when he powered it up for use.

The employer conducted an investigation, and Schramm admitted to taping the button down. He told his supervisor he was “sorry,” that he had “screwed up,” and that it was a “stupid thing to do.” Taping the button down didn’t make him any more productive, it just made the job easier to do.

He was fired the next day for cause. In the dismissal letter, the company said it had taken every reasonable precaution following the 2001 accident.

“However, we cannot condone nor protect ourselves against the behaviour of an employee who knowingly puts himself and his co-workers at risk by tampering with and overriding machine controls,” the letter stated in part. “In light of the accident in June 2001 and the subsequent investigation and warning letter, the company is at a loss to understand why you would do such a thing.”

The arbitrator said the company was justified in firing Schramm, and that he wasn’t a scapegoat for Canadian General Tower’s health and safety problems.

“(The company) must be armed with the right to discharge employees for safety violations of the kind discussed here or it will not be able to meet its due diligence obligations,” said Arbitrator MacDowell. “Nor will it be able to fulfill its several commitments to the Ministry and the courts to maintain a safe workplace.”

He was also concerned about the employee’s attitude about the accident — Schramm still felt it was a minor infraction and that it wasn’t a safety issue because the “jog” button was not a safety mechanism.

“The accelerator pedal on an automobile would not normally be considered a ‘safety’ device,” said Arbitrator MacDowell. “But tying it down in some way could have significant consequences for the safe operation of a vehicle.”

For more information see:

U.S.W.A. v. Local 862 v. Canadian General Tower Ltd., 2003 CarswellOnt 5575 (Ont. Arb. Bd.)

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