Supervisors and co-workers felt worker’s safety violation was minor, so termination was excessive: Court
A worker at an Ontario nuclear facility has been reinstated after being fired for breaching his employer’s safety rules requiring personal protective equipment.
Norbert Joncas was hired in April 2007 by Atomic Energy of Canada (AECL) to be an electrician at the company’s nuclear facility and research laboratory in Chalk River, Ont. Joncas started working in the reactor area and after a couple of months AECL promoted him to a supervisor position.
Safety was a core value at AECL and employees were informed that company policy stated that a violation would result in discipline. The goal of the discipline was to be corrective, not punitive, though the decision on discipline would depend on factors such as level of risk, awareness of risk, and intention.
Joncas received generally positive performance reviews each year of his employment, including recognition of his focus on safety. However, he was issued a disciplinary letter in June 2013 related to a failure to follow directives and a failure to have complete oversight of work taking place under his direction. The disciplinary letter made it clear that related incidents in the future would be subject to discipline up to and including dismissal.
Four months later, in October 2013, Joncas visited the facility’s switchyard area on two occasions three weeks apart. The switchyard area was one kilometer away from the reactor area where Joncas normally worked. He wasn’t permitted to remove personal protective equipment (PPE) from the reactor area and he believed the electrical equipment in the switchyard was de-energized because of a maintenance shutdown, so he didn’t wear PPE to the switchyard on either visit.
Inconsistency over PPE requirements
According to Joncas, when he first visited the switchyard on Oct. 6, a site electrician told him that no PPE was required and no one else commented on the fact he wasn’t wearing any PPE. However, he didn’t request a pre-job brief nor did he ask for clarification on PPE policy at the switchyard.
On his second visit to the switchyard on Oct. 27, a site electrician escorted Joncas into the area and a supervisor advised him he wasn’t wearing proper PPE. Joncas replied that he couldn’t bring his PPE from the reactor area and told the supervisor to “ImpAct me,” which meant complete a safety violation report. The supervisor then turned away, focused on another matter.
Joncas entered the building and a site electrician told him he needed to be wearing PPE. The supervisor saw Joncas in the building and told him he needed to leave the switchyard because he wasn’t wearing PPE, and escorted him out. He also coached Joncas on wearing proper PPE when the left the switchyard.
Following the incident during Joncas’ second visit to the switchyard, the supervisor filed an observation and coaching report and the site electrician to whom Joncas had spoken after entering the building filed a safety violation report identifying the incident as a minor problem. The report also noted that Joncas should be coached on the importance of proper PPE as remedial action.
Joncas spoke with his supervisor and the supervisor was content to have Joncas return to work, which he did for three more shifts. On Nov. 1, Joncas had an interview with AECL’s human resources department, where he said he was overloaded and wasn’t perfect, but no one was perfect. Following the interview, AECL suspended Joncas with pay.
On Dec. 1, AECL terminated Joncas’ employment for breaching a safety rule requiring employees to wear PPE.
A Canada Labour Code adjudicator found Joncas was aware there were conflicting views on PPE requirement in the switchyard when he first visited, but he didn’t make an attempt to clarify matters. Regarding the second visit, the adjudicator found Joncas was aware of the PPE requirement and should have behaved differently – in fact Joncas admitted this in the hearing.
Safety breach not considered serious by others
The adjudicator found AECL didn’t treat the failure to wear PPE on the second visit as a serious violation, as the supervisor didn’t immediately escort Joncas out of the switchyard and didn’t observe him enter the building. The safety violation report also labelled it as a minor infraction and a coaching opportunity once Joncas finished his work. Most importantly, Joncas’ supervisor allowed him to continue working for a few more days before his HR interview that ultimately led to his suspension and dismissal, said the adjudicator.
In addition, no action was taken against anyone who allowed Joncas to enter the switchyard on either visit. The adjudicator found termination was excessive discipline for the infraction and ordered Joncas reinstated with a two-week unpaid suspension on his record.
AECL appealed the decision to the Federal Court, arguing the safety violations were serious enough to warrant dismissal, particularly considering the fact that Joncas was in a leadership position and his dismissive attitude caused an irreparable breach of trust.
The court found AECL’s safety rules were important at its facilities and safety was recognized as a core value with the company, as well as the fact Joncas admitted he was wrong in not wearing PPE in the switchyard when he should have clarified things. However, it also found the adjudicator carefully considered what Joncas was told regarding the PPE requirement, Joncas’ actions as well as the actions of other employees, and the decision the adjudicator reached was reasonable.
The court noted that AECL had a document that featured a Q&A on what to expect if safety rules were breached, which stated that employees who put themselves or others at risk would be held accountable and the goal was corrective, not punitive. The evidence showed Joncas was held accountable in the safety violation report, but at the time the necessary action recommended was to coach him.
Finally the court found the mitigating factors in favour of Joncas included his safety record, positive performance reviews and overall performance, plus the fact his direct supervisor and those at the switchyard had no concerns with Joncas returning to work.
The court upheld the adjudicator’s decision to reinstate Joncas with a two-week unpaid suspension serving as sufficient corrective discipline, as there was little concern Joncas would repeat his misconduct.
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