OH&S discipline policy not unreasonable

The union objected to the employer’s policy on the wearing of personal protective equipment. It argued that it was too punitive in not reflecting progressive discipline. Not only was the policy reasonable, but the union had acquiesced in its application for too long to grieve now.

The union charged that the employer was routinely skipping the first offence level of discipline for Safety Violations and imposing three-day, non-working suspensions instead of written warnings. The union filed a policy grievance.

The union and the employer shared a concern for safety at the employer’s beef harvesting and processing facility. About 800 workers were employed at the plant. Conditions could be difficult. Workers routinely worked with knives, saws and machinery capable of causing serious injury or death.

Beginning in 2002, the employer implemented a policy on progressive discipline.

The policy established various categories of misconduct. For Safety Violations, the policy mandated a written warning for a first offence. The warning included a notice alerting the worker to the possibility of termination. A second offence received a three-day, non-working suspension. The penalty for a second offence also contained a warning on the potential for termination. Termination was the penalty for a third offence. The overall policy also contained a caution, warning workers that some steps could be skipped depending on the severity of the infraction.

The union noted that the employer issued six written warnings in 2009. In the following year it issued only one warning while three suspensions were issued and two workers were fired.

Put on notice for a first offence

The union objected to the fact that employees were being put on notice of termination for a first offence. The union said that the employer’s enforcement regime was not consistent with the aim of progressive discipline, which was to alter an employee’s behaviour. Under the employer’s enforcement strategy, employees were not being given a proper chance to modify their behaviour.

Also, many of the infractions were unintentional and concerned with failures to wear proper personal protective equipment. The employer’s policy was not reasonable, the union said. The union sought an order to reinstate the one-day suspension as a first step warning prior to the issuing of a three-day suspension.

The employer denied that there was any change in the way the discipline policy was being enforced. Differences in the severity of the penalties meted out for a first offence were explained by the severity of the particular offence, the employer said. The policy clearly referenced the employer’s power to exercise its discretion and skip the lower levels of discipline in response to a serious offence.

Moreover, the union’s objections to the policy were untimely, the employer said.

Policy not unreasonable

In any case, the policy was not part of the collective agreement. Therefore the Arbitrator could not alter the policy as the union had requested. If the policy was found to be unreasonable, it could be sent back to the employer for changes.

However, the policy was reasonable on its face, the employer said.

The Arbitrator agreed.

“The policy at issue here has been in effect for quite some period of time and spans more than one collective agreement. I think there is merit in the position of the Employer that if the Union felt that the policy was unreasonable, then it was under an obligation to raise that issue at an earlier time, whether that be at a hearing where discipline was imposed pursuant to the policy or in a policy grievance or at the bargaining table. There is no evidence that the reasonableness of the policy as it affects ‘Safety Violations’ has ever been challenged.”

The Arbitrator also rejected the union’s charge that the policy was unreasonable on its face.

“While [the policy] might in some respects benefit from additional steps leading to termination, that alone does not make the policy unreasonable. In fact, what the Union is really complaining about in this case is not so much the policy as it is written but the policy as it is being applied by the Employer. The proper forum to resolve that dispute is at arbitration over discipline imposed pursuant to the policy.”

The grievance was dismissed.

Reference: United Food and Commercial Workers Canada, Local 175 and Cargill Limited. Larry Steinberg — Sole Arbitrator. Marcia Barry for the Union. Daniel Leone for the Employer. June 14, 2011. 7 pp.

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