Worker resisted wearing PPE all the time; requirements were inconsistent and unclear
A Yukon employer did not have clear guidelines for wearing personal protective equipment (PPE) and therefore could not use it as one of the reasons for firing an employee, the Yukon Small Claims Court has ruled.
Evgenia Goncharova worked as a garbage dump attendant for the Marsh Lake Solid Waste Management Society in Marsh Lake, YT, hired in February 2011. She began as a part-time employee for about five months before she was given a full-time position in July 2011.
Over the next two years, Goncharova’s manager became concerned with aspects of Goncharova’s employment, including her performance, absenteeism, ability to work with others, overtime claims, and an inconsistent wearing of PPE. The manager brought her concerns to the society’s board in summer 2013 and the board notified Goncharova that her position would be re-evaluated and reviewed for a 60-day period.
The 60-day period came and went without event and Goncharova continued in her job as she had before.
Goncharova’s manager continued to have difficulties with her on several issues, and there was a back-and-forth over complying with safety requirements. According to her manager, Goncharova didn’t like to wear her safety vest and steel-toed boots, though this was a job requirement at all times. The manager frequently had to remind her to wear her boots and hardhat — the latter was to be worn whenever Goncharova was “engaged in an activity that required it.” The manager finally told Goncharova that she could lose her job if she didn’t wear the required safety equipment.
In September 2013, Goncharova’s manager called a board meeting that included Goncharova. She confronted Goncharova over the work issues and Goncharova became defensive, telling the manager she wasn’t doing her job properly. The manager didn’t feel the board was acting on her concerns, so she resigned.
An interim manager was appointed and shortly after, in the fall of 2013, the Yukon Worker’s Compensation Board (WCB) audited the facility. Following the audit, the society’s board instituted rules reinforcing the need to use safety equipment and PPE at all times.
The interim manager had several discussions with Goncharova over her failure to comply with the hard-hat requirement. The WCB required the use of hard hats only in certain specific areas, but the board had decided they should be worn everywhere at the facility. Goncharova disagreed with the blanket requirement.
The interim manager also found Goncharova sometimes smoked at the facility, which was considered a safety hazard. He knew Goncharova was smoking in the office because, while he never caught her, he could smell it and knew she was hiding an ashtray under a coffee table. He advised Goncharova in February 2014 that she could be fired for violating the no-smoking rule.
Worker didn’t wear PPE at all times and smoked in the office
A new full-time manager was hired in December 2013 and had difficulties with Goncharova right from the start. She felt Goncharova resented her becoming a manager and was insubordinate to her just about every day. As with the interim manager, she didn’t catch Goncharova smoking but could smell it and saw the ashtray under the table. On one occasion Goncharova blamed another employee who had been standing in the doorway smoking. On another, Goncharova stormed out of the office after an argument, lit a cigarette, and smoked it in front of the manager.
Goncharova denied she smoked in the office, despite the evidence to the contrary. Other employees who smoked were allowed to smoke in their own vehicles in the parking lot.
The new manager advised Goncharova that PPE was to be worn all of the time, including hard hats. On one occasion she said that any further failure to wear safety gear would result in Goncharova’s dismissal. However, Goncharova sometimes contacted other managers to try to obtain different interpretations of the safety requirements. She also argued she couldn’t wear PPE like earplugs all the time because she wouldn’t be able to hear at certain times when it might be necessary, such as when dealing with customers or other situations when she needed to be able to hear.
In mid-March 2014, Goncharova’s new manager resigned, saying she was unable to work with Goncharova and felt she didn’t have support of the board. On March 11, Goncharova’s employment was terminated. She was given three weeks’ pay in lieu of notice and a termination letter that stated some of the reasons for dismissal included her inability to work as a team player, smoking in the facility where it was prohibited, and not following worksite safety procedures by wearing PPE as outlined by the territory’s Workers’ Compensation Board.
Goncharova challenged her dismissal, arguing she was wrongfully dismissed. She claimed the society was inconsistent in complying with the WCB’s requirements for wearing safety gear. She also argued that when she was hired in February 2011, there was no compliance with occupational health and safety regulations and she familiarized herself with the requirements. There were also no employee guidelines to follow initially and when the interim manager gave her new ones following the WCB audit — which stated all buildings were non-smoking and employees should wear PPE vests at all times — he told her “not to lose sleep” over them. It was only her manager’s verbal instruction to wear steel-toed boots and a safety vest that she was aware of, said Goncharova.
Goncharova also said she contacted the territory’s occupational health and safety department and was advised that wearing hard hats at all times wasn’t a requirement, only in the construction and metal waste areas of the facility. She also claimed she had been told different things by different people when it came to PPE.
Goncharova acknowledged that she was aware that any employee who didn’t follow the rules could be fired, but she argued the rules were unclear, making them difficult to follow.
The court found that the 60-day period in 2013 during which Goncharova’s position was being re-evaluated and reviewed served as notice from her employer that there were concerns with her job performance. However, once this period passed without event, Goncharova was entitled to assume her performance was satisfactory, said the court.
The court noted that the employer in this case was a board of volunteers rather than “an established corporate entity,” so it was understandable if they had less of an understanding of the employment relationship and how things should proceed. However, dismissal was a serious issue regardless of the sophistication of the employer, said the court.
PPE requirements not clear
The court found Goncharova wasn’t provided with clear and unequivocal expectations by the society and what the consequences would be if she failed to comply. Even though it was mentioned to her a couple of times that she could be fired for not wearing PPE, it was never formally put in writing or documented by the society.
Additionally, the society didn’t provide “a comprehensive and complete set of rules, guidelines, and policies, preferably reduced to writing and clearly brought to Ms. Goncharova’s attention,” said the court. The court found the non-smoking policy was clear and consistent, but she was told different things regarding other policies such as the requirement to wear hard hats.
However, the court found it was likely Goncharova smoked in the office, given the presence of the ashtray and the smell detected by others.
The court found the society’s safety rules and policies were not clear or consistent enough to determine whether Goncharova was or wasn’t following them. The only PPE that she was reminded about with any regularity was her hard hat — which she did wear regularly at certain locations where it was clearly required, though not everywhere. The society had the right to make hard hats mandatory at all times in the facility, regardless of OHS official requirements, but it didn’t clearly set out this requirement, said the court.
The court also found it wasn’t logical to wear PPE at all times and locations when, such as Goncharova argued, it wasn’t practical — such as earplugs in the office.
“I find that the society did not take the necessary steps to ensure that there was a clear and unequivocal set of rules, guidelines and/or policies that made it clear what equipment was to be worn at what locations and at what times,” said the court. “I find that, to the extent that there was some verbal direction provided, this direction was not entirely clear and cannot be relied upon as establishing a standard that Ms. Goncharova can then be viewed as having breached.”
The court determined the society did not have just cause to dismiss Goncharova and she was entitled to 14 weeks’ reasonable notice. The society was ordered to pay Goncharova 11 weeks’ pay in lieu of notice on top of the three weeks she had already received.
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