Worker's lockout violation provides just cause in Alberta

'The lack of actual harm may be fortuitous, but it's not a defence for a breach'

Worker's lockout violation provides just cause in Alberta

An Alberta arbitrator has upheld the termination of a worker who violated a lockout procedure and tried to explain it away during the investigation.

“The union counsel appeared to argue that because he hadn't been hurt, more leniency should be given, and it appeared that [the] arbitrator took a dim view of that argument,” says Tim Mitchell, a labour and employment lawyer with McLennan Ross in Calgary.

“The very purpose of the lockout policy and procedures was to create a bright line and non-discretionary instruction about when locking out is required to prevent even the possibility of harm.”

“The lack of actual harm may be fortuitous, but it's not a defence for a breach [of the policy].”

Tolko Industries operates a sawmill and planer mill in High Level, Alta. The now-30-year-old worker was hired in 2011, eventually moving up to the position of millwright apprentice. He achieved journeyman status in 2017.

Tolko had a lockout policy and a drug and alcohol policy, which it trained its employees on. The lockout policy was to ensure that there was no energy connected to any machine that was being worked on, to avoid the risk of injury or death.

Lockout zone

On Jan. 20, 2020, the worker was working on a stacker, a piece of machinery in the mill. He was the “stacker captain” for the shift because he had the most knowledge of the equipment. He entered a zone around the machine where he was required to lock out all power sources, but he didn’t lock out the air supply that powered a movable cylinder.

He didn’t ask for prior written permission from a supervisor, which was required for working on live equipment.

The worker had properly locked out the equipment many times before, but he didn’t lock out the movable cylinder’s air supply because he wanted to see if a sensor was working – once he observed it, he planned on locking out the air supply. Acknowledging that it was a dangerous situation, the worker warned his apprentice to stay out of the area.

Read more: An Ontario arbitrator reduced an employee’s suspension for cutting through a lockout area because the employer’s investigation roadmap wasn’t consistently enforced.

The maintenance manager came by and saw that the worker was in the zone that required lockout of the power. He knew that no permission had been given to work on live equipment, so he ordered the worker out of the area and off the floor.

The worker protested, saying that he was trained on the machine and knew how to work on it, but the manager directed him again to leave the floor and wait for an interview.

Investigation leads to termination

Tolko investigated the incident, including interviewing the worker and other employees on the floor at the time. Although there had been no signs of impairment, management decided to order drug and alcohol tests, which came back non-negative. The worker admitted to smoking cannabis on a daily basis, including the night before the incident.

Tolko interviewed the worker twice more under a disciplinary policy it had in place for safety violations. The worker acknowledged that he didn’t ask for permission to work on the machine without locking out the power because he knew that the supervisor would have said no, but he didn’t apologize.

On Feb. 4, Tolko terminated the worker’s employment. The termination letter stated that his violation of the lockout policy, combined with previous discipline on his record – a one-day suspension for PPE violation, a three-day suspension for being absent without leave, and a five-day suspension for breaching the no-cellphone policy – was just cause for termination. It added that his violation of the drug and alcohol policy reinforced his disregard for company policy and the safety of himself and his co-workers.

Mitchell points out that Tolko covered its bases well by having not only a lockout policy and procedure, but also a discipline policy.

“[The arbitrator] noted that [the disciplinary policy] underscored the seriousness of the way in which the company took lockout requirements and its obligation to operate a safe workplace,” says Mitchell. “It highlighted that the safety protocols at this company are of high importance and clearly identified to employees what would transpire in the event of a breach.”

The union grieved the termination as unfair, arbitrary, discriminatory, and without just cause, particularly since nobody was hurt. At the hearing, the worker agreed that the lockout violation was his fault and he understood the rules, but at the time he didn’t think he was violating the lockout policy as he didn’t plan to actually work on the machine before locking out the power.

He also didn’t think smoking cannabis the day before his shift was an issue at the time, but realized he was wrong.

Read more: An Ontario worker’s failure to follow lockout procedure didn’t deserve termination because similar incidents involving others resulted in only suspensions, an arbitrator ruled.

The arbitrator noted that the termination letter indicated that the termination was for the violation of the lockout policy and it only mentioned the violation of the drug and alcohol policy as a reinforcement for the worker’s disregard of company policy. In addition, the evidence indicated that the worker was aware of the lockout policy and procedures.

The arbitrator found that there was no distinction between working or just observing in Tolko’s policy and procedures. The fact was that he was in the zone requiring lockout of the equipment and the worker knew this, as he warned his apprentice to stay clear – an indication that the worker knew there was a danger, said the arbitrator.

The arbitrator added that the fact that no one was hurt was not a mitigating factor for breaching the policy. As a result, there was cause for discipline, he said.

The arbitrator also found that the worker had a significant disciplinary record – three prior suspensions, including a warning that any further incidents would result in termination – and didn’t demonstrate remorse or acknowledgment of his misconduct prior to the hearing. This supported termination as an appropriate level of discipline, said the arbitrator.

Clear, consistent policy

The fact that Tolko had a clear lockout policy that was enforced and on which employees were trained was a key factor in the arbitrator upholding the termination, says Mitchell.

“There was no inconsistency involving [the policy], coupled with the fact that this [worker] had been involved in other incidents, so it wasn't a single violation of a safety protocol,” he says. “Coupled with the fact that the [worker] was less than candid, perhaps even a bit cavalier in trying to suggest that he wasn't operating the equipment at the relevant time but rather just observing it, I think [the] arbitrator took a particular dim view of that.”

The worker’s lack of acknowledgment of his misconduct initially and during the investigation made reinstatement less of an option, Mitchell adds.

“In circumstances where an employee says, ‘I was wrong, I'm sorry’ – that's a consideration that weighs heavily,” he says. “Obviously, it's balanced against the severity of the incident, the training, and knowledge in whether or not the apology is sincere, but it is definitely a strong factor that wasn't present.”

The arbitrator noted that it wasn’t necessary to address whether testing the worker for drugs and alcohol was appropriate, as it wasn’t used as a ground for termination. Even if it was, the lockout violation was sufficient grounds for termination, the arbitrator said in dismissing the grievance.

Although the arbitrator didn’t assess the appropriateness of drug and alcohol testing, it’s a reminder that employers should be conscious of the interplay between their drug and alcohol policies and safety policies so that testing is only done in the right circumstances – and employees are aware of those circumstances, says Mitchell.

“Just be careful in deciding if and when you're going to test under the drug and alcohol policy and what the impact of that could potentially be on the termination,” he says. “At the end of the day, the arbitrator ruled that the lockout violation in and of itself was significant enough that he upheld the termination on that basis alone, but it does raise some interesting consideration as to when you should be engaging in for-cause drug testing – I think it clouded the issue somewhat, potentially unnecessarily.”

See Tolko Industries Ltd. and USW, Local 1-207 (Wolfe), Re, 2022 CarswellAlta 1088

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