Worker should have known better but he was a long-term employee and acknowledged his mistake: Adjudicator
An Alberta company did not have just cause to dismiss a worker, even though the worker willfully made a serious breach of the company’s safety policy, an adjudicator has ruled.
Darryl Shuya worked as a shipping operator in a Lloydminster, Alta., oilseed processing facility run by ADM Agri-Industries.
The facility crushed canola and shipped the resulting oil for food applications, and also produced canola meal pellets for livestock feed.
Shuya was hired in October 2001.
On March 24, 2013, Shuya was three hours into a 12-hour overnight shift when the unloader he was supposed to be operating wasn’t working.
Unloaders were used to move canola pellets from large bins to hopper cars or trucks and sometimes they got stuck because of pellet clumping in the bin.
When unloaders were stuck, the common procedure was to "jog" the motor’s electrical switch off and on to give the sweep arm inside the bin momentum to break free.
If that didn’t work, the clogged pellets would have to be accessed through a hole in the side of the bin.
In this case, Shuya thought he could get the motor going if he helped it turn. He took a pipe wrench and attached it to the shaft of the motor’s gear box, then turned the motor on.
Though he knew proper procedure was to lock out a machine before working on it, he thought he wouldn’t be able to turn the shaft with just the wrench and would need to turn the motor on.
When the motor started, the pipe wrench pushed Shuya’s hand against the motor and broke one of his fingers. Shuya was taken to a hospital and treated.
He returned to work the rest of the shift on light duty.
Breach of safety policy
resulted in dismissal
On March 28, ADM suspended Shuya pending an investigation of the accident.
It was concerned with the risk Shuya had taken, particularly since the company had updated its safety and work rule policy earlier that year in order to crack down on what it perceived to be a rash of workplace accidents.
The safety policy had guidelines for locking out equipment and performing a job hazard analysis before starting any task.
It also included the concept of cardinal violations, which were defined as "knowingly willful and grossly negligent violations that may result in serious physical injury, death or significant property damage."
Though the policy provided for a progressive disciplinary process for violations, it also stipulated progressive steps could be skipped for cardinal violations.
Shuya and other employees were trained and tested on lockout procedures, job hazard analyses and the entire safety policy, and Shuya acknowledged he understood it.
ADM determined in its investigation that Shuya was well- trained and aware of its policies and he was lucky he didn’t suffer a more serious injury.
It also found he failed to perform a job risk analysis and didn’t follow the procedures for locking out the unloader and bin. As far as the company was concerned, Shuya’s actions willfully and knowingly violated its safety rules and demonstrated negligence, and this amounted to a cardinal violation under the safety policy.
ADM terminated Shuya’s employment for cause on April 8, 2013.
Shuya acknowledged that he violated safety rules and he didn’t think he would be injured by his actions.
However, he said he had worked for ADM for more than 11 years without any disciplinary issues, so termination was too harsh for his misconduct.
He pointed to two other serious safety violations a few years earlier in which one short-term employee with prior discipline was dismissed while another long-term employee with no previous discipline was not disciplined.
This showed ADM was inconsistent in its discipline, said Shuya.
Zero-tolerance rules
more common
The adjudicator noted that zero-tolerance safety rules are becoming more common in plants like ADM’s where there is a risk of serious injury.
However, the adjudicator also pointed out that it has been established that for misconduct to constitute just cause, it must be wilful, or "being bad on purpose."
The adjudicator found that Shuya’s actions were deliberate and not a momentary lapse. He knew what he was doing and that they weren’t following safety protocols. Under ADM’s safety policy it was serious misconduct and the adjudicator agreed.
The adjudicator also found the fact that Shuya was aware of and had acknowledged ADM’s safety policies, which specifically named violation of lockout procedures as cardinal violations.
The enforcement of the rules was important to ADM so workers wouldn’t become complacent and follow unsafe practices in the workplace.
This emphasized the seriousness of Shuya’s misconduct, said the adjudicator.
Strong mitigating factors
However, the adjudicator agreed with Shuya that as a long-term employee with no prior disciplinary record, that made it reasonable to expect that progressive discipline was an option. The other examples of workers with serious safety violations were before the new safety policy, and while the policy indicated cardinal violations could lead to dismissal, it didn’t say it was automatic dismissal. What constituted dismissal wouldn’t necessarily be clear to employees, said the adjudicator.
"Though Shuya took a wrench to the bin and, therefore, some measure of planning had to be present, I find there was an element of spontaneity in his actions and…a ‘freezing of intellect,’" said the adjudicator.
"On the facts, wilful misconduct should not be found."
The adjudicator found Shuya did not intend to harm ADM and his unsafe conduct involved him "trying to get the job done" for the benefit of ADM.
Shuya acknowledged his mistake and accepted responsibility for it and there was no damage to equipment.
As a result, termination was a disproportionate response to Shuya’s misconduct, said the adjudicator.
The adjudicator ruled that a one-month suspension was appropriate discipline in the circumstances.
However, Shuya had found other work — reducing his lost wages to four months’ worth — and didn’t request reinstatement, so ADM was ordered to pay three months’ wages to Shuya.
For more information see:
Shuya and ADM Agri-Industries Co., Re, 2014 CarswellNat 3819 (Can. Adj.).
