'Near miss' event after failure to turn off feeder
An electrician working at a sawmill in Chipman, N.B., failed to disengage a power supply, causing a delivery driver to take evasive action to avoid a serious accident.
Nicholas Carrier had worked at the Grand Lake Timber planer mill since 2012, but on July 13, 2017, he was called to look at an outside feeder deck for wood that wasn’t operating properly.
While Carrier was under the deck, a loader carrying wood to be fed into the plant arrived, backing up to the feeder deck.
The loader operator noticed the feeder had begun to operate when he approached, and he also noticed Carrier was beneath the feeder, so he quickly stopped his vehicle. He angrily approached Carrier to ask about his behaviour.
The company had recently suffered the death of an employee in its Truro, N.S., operation and employees had been understandably upset about that incident, testified Michel Munroe, electrical technologist and Carrier’s supervisor.
The loader operator filled out a form for a “near miss” event that was to be completed after an incident that could have injured or killed someone.
Munroe investigated and he determined Carrier failed to complete the company’s “lockout” procedure which would have disabled the feeder.
The next day, a meeting was held and Carrier was given a chance to respond. He said he tried to notify the driver by phone, but he was unsuccessful. Carrier also admitted to wrongdoing regarding the “lockout” and he wasn’t wearing the appropriate safety vest.
At the time, Carrier was operating under a 2016 last-chance agreement (LCA) that said: “Should you have another serious disciplinary issue on your file, your employment with the company will be terminated with cause.”
Carrier had received three previous five-day suspensions for his actions, as well as a verbal warning, which necessitated the LCA.
No firm decision was made during the investigation meeting, but Carrier was told to go home until further notice. He returned on July 28, two weeks later.
When he returned, site manager “CC” presented him with a termination letter, and Carrierleft the site without incident.
The union, Unifor, Local 104, grieved the dismissal on July 28 and argued that the employer participated in a double-penalty for the “lockout” incident when it imposed a suspension and then termination given by two different managers.
Because it was Carrier’s first safety violation, the employer should have followed the letter of its safety disciplinary policy (SDP) and imposed the suspension, argued Unifor.
Arbitrator Guy Couturier dismissed the grievance, but agreed with the union on one point.
“I do agree that once a member of management, with the requisite authority, such as Michel Munroe, has assigned and imposed a penalty for a disciplinary offence, the incident is closed and cannot be revisited, either by the same person or anyone else in management who feels that a more severe penalty is called for,” said Couturier.
However, the agreement was the determining factor, he said.
“The LCA itself is challenged by Nicholas Carrier, stating that he signed off reluctantly. Explaining in his testimony that if he didn’t sign, he could not go back onto the work site. He is likely correct in that conclusion. Nicholas
Carrier is currently unemployed and has a family at home to support. Although far from being benign as mitigating factors, they unfortunately do not negate the conditions of the LCA and the actions which triggered the dismissal. Therefore, for the reasons expressed, the grievance is dismissed.”
And even though the SDP was clear, the LCA overruled its implementation.
“The SDP is a policy of general application within the company. It applies to all workers. However, the LCA applies solely to Nicholas Carrier. It is this employee that, over time, has found himself in a bargain with his employer in which the latter foregoes discharge, and puts its faith in the employee that nothing, of a similar nature, would repeat itself. I am satisfied that in this instance, the SDP is subordinate to the LCA in relevance, because of the unique perspective it causes when called upon to consider the application of the SDP to (Carrier),” said Couturier.
Reference: J.D. Irving Ltd., Grand Lake Timber and Unifor, Local 104. Guy Couturier — arbitrator. Clarence Bennett for the employer. Brenda Comeau for the employee. Nov. 21, 2017. CarswellNB 539
