Serious safety infraction warrants termination

The worker had long service and was trained in the safe operation of equipment, but chose to operate a machine with the guard removed. The company was entitled to escalate the discipline it assessed him because it had signaled that it would deal with violations severely.

Observed performing manual tasks at his station with the guard removed from his machine, an operator at a heavy industrial plant was terminated.

An eight-year employee at a company that produces industrial grade tubing for the oil and nuclear industries, J.J. was a Utility Operator and Project Helper. He was responsible for ensuring the accuracy of documentation and training materials for new machines. He was also a member of the plant’s Continuous Improvement group and had received supplementary training from the provincial safety association. J.J. participated in developing hazard and risk assessments and machine guarding at the plant.

The plant’s safety record was not stellar. Since 2000, two employees had been maimed and fines under the provincial health and safety act had been levied.

Following the second accident, the company took measures to improve its performance. A new machine guarding initiative was undertaken and an outside contractor was engaged to assist in developing electronic checks on machines and other safety features.

On February 2, 2010, J.J. covered the overnight shift for an absent employee. He was operating the Sutton Straightener, which channels coiled tubing through rollers and then automatically cuts the straightened tubing into 20-foot lengths.

Machine guard removed

During the course of the shift, the supervisor came to check on J.J. The supervisor said he saw J.J. operating the machine at slow speed, and using fine sand paper with his hands to clean “pick-up” from the tubing as it went by. The guard to protect the roller area had been removed and was on the floor.

The supervisor intervened and asked J.J. a number of direct questions regarding his awareness of procedures and whether or not he had been trained. J.J. was told that the incident would be reported.

Thee days later, J.J. was called to a meeting and asked to confirm the supervisor’s allegations. He did. J.J. was suspended pending further investigation and later fired. The termination letter said that J.J. had knowingly courted potentially catastrophic harm and that his actions were in violation of both internal company policy and provincial health and safety regulations.

The union grieved.


J.J. had been ambushed. The sanctions for previous, similar infractions ranged from a written warning to a one-week suspension, the union said. If the employer was intent on cracking down on these types of infractions, proper notice was required. In the circumstances, a one-day suspension was appropriate.

Termination was warranted, the employer said. J.J.’s conduct was deliberate and intentional, regardless of his subsequent rationalizations. He had been trained in the proper procedures but chose to ignore them. J.J. did not acknowledge that he was wrong and he did not accept responsibility. These factors made him an unsuitable candidate for reinstatement.

The Arbitrator agreed.

The union’s assertion that management had not satisfied accepted notification requirements for rule or policy changes according to the principles established by the KVP award was incorrect, the Arbitrator said.

The “reset” process that the company undertook in the wake of the second workplace accident was not new policy but, rather, an effort to affect attitudes about existing policy. Even if that did not entirely capture the process, the case could be made that the employer had satisfied KVP requirements, the Arbitrator said. “[J.J.] knew or ought to have known that there was a change in attitude about existing safety procedures.”

Deterrence a key factor

The examples of more lenient treatment for similar offences presented by the union were not instructive because they predated the “reset,” the Arbitrator said. Moreover, the company’s need to establish deterrence in view of its renewed commitment to safety procedures was a key factor in the circumstances.

J.J.’s blatant disregard of regulations and company policy made him an unworthy candidate for reinstatement, the Arbitrator said.

“[J.J.], despite knowing the safety procedures and having special additional training, preferred to use his discretion to run the equipment his way when polishing the rolls. He does not exhibit to me a willingness to observe the safety rules when he gives the comments and evidence he did. He will most likely use his discretion and act contrary to the safety rules in the future. Therefore, I do not find him to be a good candidate for correction of his conduct in dealing with the safety environment that accompanies working in a heavy industry production shop floor. A suspension will not likely correct his behaviour and act as appropriate deterrence.”

Discharge was justified. The grievance was dismissed.

Reference: Sandvik Materials Technology Canada and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 2228. Richard H. McLaren — Sole Arbitrator. Jeffrey D.A. Murray for the Employer and Harry Ghabdan for the Union. November 19, 2010. 25 pp.

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