Employer didn’t like delayed response by company firefighter with multiple instances of discipline over short period of employment
Certain jobs require a high level of responsibility and therefore a high level of expectation that the employee will perform the job well. If the job is not done well, there could be more likelihood of just cause for dismissal. This doesn’t just apply to simple dismissal, but can also be a factor when looking at not just the misconduct itself, but the employee’s history of misconduct.
Sometimes, employees can be dismissed for cause even if their misconduct on its own wouldn’t normally provide just cause for dismissal, if they have a history of similar misconduct that shows they don’t seem to be getting the message. Previous discipline for misconduct on an employee’s record can elevate a single instance to a culminating incident that, combined with the past, provides just cause for dismissal. And if an employee is in a position with a high level of expectation and responsibility, it may not take too many instances of misconduct to lead to a culminating incident.
A company firefighter’s delay in responding to an emergency call was not in itself just cause for dismissal, but it was a culminating incident when combined with his disciplinary record, an Ontario arbitrator has ruled.
The worker was an operator technician at a wastewater facility that was part of a petro-chemical plant in Sarnia, Ont., run by Lanxess. Lanxess maintained its own fire hall at its facilities and, because of the company’s knowledge and experience with chemicals and hydrocarbon fires, it provided first responder emergency fire, rescue and medical services to other companies nearby under a contract. The worker’s duties included being a backup firefighter ready to respond to any calls. At all times, there was a fire captain and a backup firefighter to respond to any emergency.
As a backup firefighter, the worker reported to the fire hall at the beginning of each shift to perform checks on the fire truck and equipment. He then parked the fire truck at the wastewater facility to be ready for use when a call came in. When a call came in, he was to stop his operator technician duties and immediately respond.
The worker was hired in 2011 and in his first two years of service had two suspensions — one 12-hour shift for his conduct during firefighting training and four 12-hour shifts for being found asleep in a non-designated fatigue recovery room.
The worker began an overnight shift on Feb. 7, 2013, by checking in at the fire hall and driving the fire truck to the wastewater facility. It was a snowy night and Lanxess had to utilize its snow removal services at about 3 a.m. to deal with the road conditions on its property. The worker started his operator technician duties and worked on a particular project for about four hours. Shortly after 4 a.m. on Feb. 8, the plant protection officer put out an emergency alert about a fire at Styrolution, a nearby company that had an emergency services contract with Lanxess. The alert involved a loud alarm sounding in the wastewater facility as well as a signal on a radio carried by the worker.
Concerns over response time
A few days after the fire, Styrolution raised a concern with Lanxess’ chief of emergency service about the response time of the Lanxess firefighters. Lanxess investigated the incident, spoke to several employees, and the lead of waste operations drove the route the worker took that night to the fire, which was 1.67 km long. It took him four minutes and 30 sections, while the record of the call showed the worker acknowledged the call two minutes after it came in, was on his way four minutes after that, and arrived four minutes later — a total of ten minutes after the call came in.
In the audio recording of the call, once the worker acknowledged the alert two minutes after it came in, he asked for the details to be repeated. The fire captain responded within a minute to the call.
The worker explained that after he answered the call, he went outside to clear snow off the windows and lights of the fire truck before proceeding with the fire captain on duty. He said the roads weren’t plowed, so he drove slowly and stopped at all stop signs and red lights. He stated he believed he followed all the rules, did his job properly and handled the incident well.
When asked what he was doing at the time the call came in, the worker explained he was sitting in a chair in the lab of the wastewater facility. When he heard the call, he said he walked out to the fire truck and cleared snow off it. The fire captain arrived and the two of them continued to clear snow before driving to Styrolution. He was asked whether he had kept the truck clear of snow over the course of the shift, but the worker said he “got complacent.”
The worker also explained he asked for the call to be repeated because he was flustered and wanted to clarify things. He said he could not hear everything because he had “tunnel vision” and was focused on getting to the fire truck.
Though Lanxess had no written policy on fire emergency response times, it was a requirement for firefighters to respond to alerts immediately. Since the worker took about 90 seconds to respond to the call and then asked for it to be repeated, the company felt he could have acted more quickly. It was also considered odd because no-one on duty had asked for a call to be repeated before as they were usually “on the ball” and trained to respond immediately.
The investigation also revealed that though it was snowing that night, the company’s snow removal service had been called into action and the roads had been sanded and salted. Another employee reported he had seen the fire truck going slower than was necessary with no traffic around.
Company email used for communication with online poker site
At the same time as this investigation, Lanxess was also investigating improper use of the company’s electronic communication system by several employees. The investigation revealed the worker sent and received personal emails from his work account, including an email from an online poker website containing a temporary password. There was no evidence the worker actually played online poker at work, however.
The worker was questioned about the emails he received and he said he didn’t recall any online policy training — though he signed an acknowledgement in February 2011 that he understood and agreed to it. He explained he used his work email to set up the online poker account because it was more secure than his personal email, but expressed regret in doing so. He denied playing online poker at work.
On March 25, 2013, Lanxess terminated the worker’s employment. The termination letter stated that his delayed response to the emergency call was “yet another example of your inability and/or refusal to carry out your tasks responsibly” after his previous suspensions. The company also said his use of company resources to access online gaming sites was “particularly troubling” since he has been disciplined for sleeping on the job previously. The letter concluded by saying the two incidents along with his past disciplinary record provided just cause for dismissal.
The arbitrator first addressed the accusation of accessing an online gaming site while at work. Though the worker received emails to his work account from the site, including a temporary password and promotional material, there was nothing to indicate the worker accessed the site or gambled while at work. Lanxess inferred that the worker must have in order to have the password sent to his work email, but the arbitrator refused to make the same inference without definite evidence. In addition, the only employee who was disciplined under the online policy had sent inappropriate and offensive emails to other employees. It was unfair to single the worker out for personal use of the company’s communication systems, said the arbitrator. The arbitrator found there was no basis to support this ground for discipline.
However, the arbitrator found the bar for expectations was high for someone in the position of firefighter. The general performance standard of a firefighter was to respond to an emergency as quickly and immediately as possible, and the worker, through his training, would be aware of this standard, said the arbitrator.
“…It is fundamental and obvious that a firefighter in order to meet the high standard of care inherent in the position of a firefighter, has a clear and pressing obligation, given the potential dire consequences, to respond to an emergency fire alert as quickly as possible,” said the arbitrator.
The arbitrator found the amount of time the worker took to respond to the call was unreasonable, given his training and the fact he had the radio with him. His explanation of “tunnel vision” requiring him to request a repeat of the call was dubious and “has all the hallmarks of a self-serving and contrived excuse,” said the arbitrator. In addition, there was no mention of “tunnel vision” until his interview.
The arbitrator also found the worker didn’t keep the fire truck clear of snow, which contributed to the delay and could have been worse if the fire captain hadn’t been there to help. He testified he cleaned snow from the truck earlier that night, but in his interview he said he had been complacent. This inconsistency hurt the worker’s credibility, particularly since he also said the roads weren’t plowed that night when all reports indicated Lanxess had plowed, sanded and salted the roads.
The arbitrator found that the worker’s delayed response was “not egregious conduct that would warrant immediate dismissal,” but given his disciplinary record, it was “properly a culminating incident” upon which Lanxess could rely for just cause. The arbitrator noted that the worker had made written promises after his previous misconduct to improve his performance and follow company policies. However, he “wasn’t getting the message” and he continued to deny doing anything wrong that contributed to his delayed response on Feb. 8, 2013.
The arbitrator upheld the dismissal.
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