Termination excessive for performance error

A worker at a fruit drink manufacturing plant was fired after his critical failure to close a valve during a production run caused a substantial and costly spill

A worker at a fruit drink manufacturing plant was fired after his critical failure to close a valve during a production run caused a substantial and costly spill.

D.G. had eight years’ service with Green Grove Foods Corporation when he was fired on Aug. 16, 2011. There were two written warnings on his record.

One warning alleged that D.G. was a no-show on July 21, 2011. The other warning held D.G. accountable for a mixing, or “batching,” error that necessitated the dumping of 250 cases of mis-mixed product.

The employer also alleged that D.G. had been violating the company’s policy against using cell phones at work — although the company had no documentation to support this charge and it was unable to point to any particular breach of the policy.

D.G. started at the plant working as a Floater. He then became a Machine Operator and then finally moved to the position of Batcher on July 26, 2010.

Batchers at the plant were responsible for mixing batches of juice and then sending the prepared juice to the filler station for bottling. Batchers were also responsible for cleaning the various tanks and tubes using an automated Cleaning in Place (CIP) system that employed a chemical flush.

Little practical experience

While D.G. officially became a Batcher on July 26, 2010, because of layoffs, a lack of formal training and only spotty on-the-job training, D.G. had little practical experience as a Batcher when he came into work on Aug. 8, 2011.

D.G.’s assignment on that day was to assist the Senior Batcher with a tomato juice run. However, the Senior Batcher called in sick that day, which left D.G. to complete the run by himself. Two people were normally assigned to the task because tomato juice production was more complex. In the past, the company had regularly scheduled three Batchers to work a tomato juice run.

D.G.’s task was to send the juice, which had been prepared by the previous shift, to the bottling station. Unlike all the other juice production runs, it was necessary to manually open a valve to complete the transfer of tomato juice to the bottling station. That valve had been opened to prepare for the transfer before D.G. came on shift.

D.G. successfully completed the transfer. However, problems began soon after D.G. initiated the CIP following the transfer. A supervisor alerted D.G. that product was flowing back through the tubes, which should not occur during the CIP process. As the supervisor did not seem overly concerned, D.G. went to lunch.

During lunch, D.G. was alerted that a major backup and spill was underway. D.G. investigated. He discovered the source of the problem and then closed the valve. However, it was too late. A substantial quantity of product had been spilled. Product had backed up into the chemical tanks. Cleaning chemicals had also contaminated the product. Losses were significant.

D.G. was fired.

The employer said that the spill was the “last straw.” The employer challenged the assertion that D.G. had not received sufficient training. The employer said that it was simply not credible that D.G. did not know about the valve — as he claimed — and did not know to make sure that the valve was closed before running the CIP process. Workers in the food production sector are expected to adhere to high standards of performance in order to protect the health and safety of the public. D.G. failed to meet this obligation. Termination was warranted, the employer said.

Non-culpable failure

The union said that before D.G. could be disciplined for deficient performance, the employer had to show that he had been given adequate supervision and instruction on how to perform the job.

The Arbitrator agreed.

The previous warnings on D.G.’s record lacked merit. However, the spill was a serious issue. The Arbitrator accepted the union’s assertion that inadequate training and a lack of staff contributed to D.G.’s non-culpable failure.

“The lack of training and experience ‘resulted’ in the Grievor being ignorant of the existence of the manual valve and the need to close it. The jurisprudence cited by the Union is consistently clear that such factors, especially lack of training, negate culpability where an error is made.”

However, the Arbitrator said, irrespective of any deficiencies in his training, as the only Batcher on duty on Aug. 8, D.G. became the Senior Batcher. As such, he was required to perform his duties to the best of his abilities. The Arbitrator said that D.G. failed to meet that responsibility.

“As long as the true cause remained undetected or only guessed at and as long as the problem continued, it was his responsibility as Batcher to remain at the scene of the problem until it was cleared up. He failed in that responsibility… No lack of training or experience excuses the failure of the Grievor to act.”

Discipline was warranted but termination was excessive in the circumstances, the Arbitrator said.

Reference: Green Grove Food Corp. and United Food and Commercial Workers Canada, Local 175. Nelson J. Roland — Sole Arbitrator. Anne H. Stevens for the Employer. Simran Pihar for the Union. Nov. 22, 2012. 20 pp.

Mark Rogers is a writer and editor who specializes in labour relations and occupational health and safety.

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