Disciplining employees for safety violations

Transcription

1 HRPA and First Reference Present Employment Law at Work Disciplining employees for safety violations By Christina Catenacci LL.B., Assistant Editor and Yosie Saint-Cyr, LL.B., Managing Editor, HRinfodesk.com---Canadian Payroll and Employment Law News, September 2009 According to management law firm, Stringer Brisbin Humphrey, a favourite tactic of the prosecution in a case alleging a violation of health and safety regulatory standards, is to seek responses from supervisors about whether unsafe practices resulted in progressive discipline, or any discipline at all. Too frequently, the response from management sounds something like, Yes we told them, we kept reminding them, we told them until we were blue in the face. What more could we do? The answer, in a word, is applying progressive discipline. Why progressive discipline? The need for discipline is front and centre in health and safety legislative requirements; and in decided court cases, it is considered one of the few defences (integral part of due diligence) available for violation of those requirements. Meaning, courts across Canada have repeatedly stressed enforcement of safety rules and policies as a key component of a due diligence defence to a charge of violating occupational health and safety standards. In addition, working in an unsafe manner can be just and reasonable cause for discipline to be imposed because workers have legal obligations under Occupational Health and Safety legislation across Canada. In addition, supervisors have important obligations under OHS legislation to ensure employees know they are responsible for and are working safely. Employers have a legal duty to appoint competent supervisors, which means an individual who is: qualified; familiar with health and safety legislation; and knowledgeable about potential or actual dangers. A supervisor is any person who has charge of a workplace or authority over a worker. When supervisors are not fulfilling their legal obligations, that can be cause to discipline the supervisor. Following sound health and safety practices should be an implied term of every supervisor's employment. When that does not happen, they need to be taken to task by following a progressive discipline approach to correct the problem. Effectively integrating discipline into your health and safety program Progressive discipline for health and safety infractions is not so different from discipline for violation of other fundamental workplace rules.

2 The general purpose of disciplinary action is to prevent unacceptable behaviour by imposing sanctions. In workplace health and safety, discipline is necessary to prevent irresponsible behaviours that are essentially unsafe and, more often, to ensure compliance with safety rules. According to several studies, the implication is that it is not necessarily the hazards on the job that cause injuries and illnesses, but it is the behaviour of those exposed to the hazards that cause injuries and illnesses. Addressing disciplinary issues can be a very sensitive and stressful process for most managers, supervisors and employees. However, if disciplinary issues are avoided or handled poorly, it can lead to serious consequences such as injury, property damage or fatality. Discipline for health and safety reasons should not be viewed and explained as a form of punishment, but as a rule or system of rules governing conduct or activity in order to eliminate unsafe circumstances. Education is the key to establishing proper disciplinary procedures and holding all employees accountable to your company's health and safety policy and program, as well as to applicable regulatory requirements. Thus, your health and safety disciplinary process should be an integral part of your health and safety program. Your written and clearly communicated health and safety program, including specific policies and procedures, should be based on knowledge of the legal requirements and particular knowledge of the health and safety hazards present in your workplace, including the physical premises of all work locations, equipment used during work and all workers at the workplace. This also involves regularly inspecting the workplace, addressing any newly identified hazards, and confirming that workers are performing the work and using the equipment in accordance with safe work practices and procedures. A comprehensive OHS program should: Express management's commitment to protect the health and safety of employees Clearly identify the objectives of the program Communicate the organization's basic health and safety philosophy, policies and procedures/standards Outline who is accountable for occupational health and safety programs Outline the general responsibilities of all employees Be absolutely clear that health and safety will not be sacrificed for anyone's convenience Require that supervisors and managers keep documents, minutes and reports. Particularly of safety reminder meetings. Require that they keep files of all individual safety reminders or warnings.

3 Be absolutely clear that unsafe behaviour will not be tolerated In addition to specific health and safety workplace policies and procedures, you will need to establish procedures for: Emergency response Training and orientation Reporting near misses and accidents Reporting on inspections and follow-up Discipline Monitoring and follow-up The employer must monitor compliance with the said program to identify any failure by workers to comply and any required improvements to the system. This would involve providing documentation to ensure compliance. But this is not where the process ends. The important question that employers should be asking themselves is: what do we do if there is a lack of or no compliance? The answer is enforcement of the health and safety programs (including policies and procedures); and enforcement includes disciplining for any apparent violations to the program. In addition, Supervisors must be trained if they are expected to discipline in an effective and legally appropriate manner. Discipline measures may always be challenged. Training will prevent errors from being reversed by Tribunals and arbitrators. Repeatedly telling an employee not to disobey the rules is not enough to meet the due diligence standard. What if a worker refuses to follow safe work procedures? When a worker is not using safe work practices, the supervisor must reinforce what is expected of the worker. If the worker continues to deviate from recommended practices, he or she should be disciplined accordingly. When should you discipline an employee for not working safely? A discipline process begins with a discipline policy. The policy needs to be clear, fair and consistently applied. Making workers familiar with the discipline policy and enforcing it will clearly deliver the message that safety infractions are not acceptable. Infractions can include failure to wear personal protective equipment, failure to follow safe work procedures, or harassment or horseplay at the workplace. Disciplining workers on safety infractions must be followed up by written record to be taken seriously; therefore, keep records on the monitoring of safe work procedures and record your use of the discipline policy.

4 Any time you contemplate taking a disciplinary measure against an employee, you should undertake a full and complete investigation, so all relevant factors are taken into account. There may be mitigating circumstances that need to be considered. This is a two-step process: first, you need to determine if any discipline is warranted, and second, if so, what is the appropriate penalty. For example, during the investigation, the employer will determine whether the non-compliance was due to a lack of knowledge (training would be more appropriate) or irresponsible behaviour (discipline would be appropriate). When disciplining workers after they violate the employer's safety policies and procedures, the question usually comes down to whether the discipline imposed was just or whether it was excessive. The discipline must: Be corrective and not punitive - there has to be an intention to motivate the employee to perform appropriately Have a reasonable relationship to the gravity of that employee's wrong - for instance, a mild wrong ordinarily merits a mild response, and a serious wrong ordinarily merits a serious form of discipline Be applied consistently - an employer cannot give a warning to some employees and then terminate another for doing the same act Follow progressive discipline principles - that is, the discipline imposed initially should normally be relatively mild, and more serious discipline is appropriate for repeat offences Be appropriate to the particular employee, given his or her length of service, previous employment and discipline record, etc. - thus, employees with more seniority or with better discipline records could receive more favourable treatment and milder discipline. When disciplining an employee for non-compliance with health and safety policies, programs and procedures established to meet the due diligence standard, employers must also consider what might happen in the case where this employee was disciplined or dismissed and wants to sue or grieve. For example, this non-compliant employee could launch an action for wrongful dismissal or grieve the form of discipline utilized. Whether the workplace is unionized or non-unionized, discipline using the basic principles of progressive discipline is required in order to reinforce the employer's health and safety policies, programs and procedures. The severity of the discipline depends on various factors based on the circumstances of each particular case, some of which include: prior disciplinary record of the employee; the seriousness of the offence; the length of service of the employee; and the consistency of enforcement of the rule in the workplace. Numerous cases have come out of the courts and tribunals regarding the issue of disciplining employees for safety violations. Though each case is examined on its particular circumstances, the cases mentioned below can provide some direction for employers as to how to discipline employees who commit safety infractions such that the health and safety policies, programs and procedures can be upheld, and any future defence of due diligence can stand.

5 For instance, in: A&M Cookie Company of Canada, a supervisor asked selected employees who wished to work Friday night sanitation overtime in the plant to sign off on a memo indicating they understood the company's approach to safety. Every employee who was asked to sign did so and continued working the shiftexcept for the grievor, a senior employee who refused to sign the memo. This employee refused to sign because his union had told him he did not need to sign things, and also because he felt this was a downloading of responsibility for safety from the supervisor to the employees. Thus, the disciplinary consequence was that the employee could not work overtime until he signed the memo related to the safety procedures. The employer acknowledged that the grievor was a senior employee and a good worker, but argued that there were health and safety issues on this sanitation shift, hence the requirement to sign the safety memo. Also, it made sense to have a signature on this memo as it would facilitate proof that the grievor had been advised of the safety procedures, especially if there were to be a change in the supervisor. The employer stressed that its action was permitted in the collective agreement, and sign-offs were common in this workplace. The employer also pointed out that the grievor had signed off on other policies and practices in the past. In fact, the grievor's repeated refusal to sign the memo constituted insubordination. Under the work now, grieve later approach, the grievor should have signed the sheet and then grieved. Finally, the argument about downloading responsibility was bizarre. The arbitrator conducted the following analysis: 1. Did the conduct of the grievor justify a disciplinary response? The arbitrator decided that the employer had a reasonable concern about safety on this particular sanitation shift, and in response to the concern, required employees to review the safety procedures. Employers with a legitimate safety concern are entitled to take steps to confirm that their employees are familiar with the safety procedures to minimize workplace injuries. Therefore, there was cause for discipline in this case. 2. If so, was the discipline imposed excessive? The arbitrator noted that the discipline was that the employer refused to let the employee work the shift until he signed the memo. Following the criteria for appropriate discipline above, the arbitrator found the discipline was clearly intended to motivate the grievor to change his behaviour. It also bore a clear relationship to the wrong. The grievor was allowed to work his regular shift, but was not allowed to work overtime on this sanitation shift until he accepted the employer's approach to safety by signing the form. Also, the wrong and the penalty bore a reasonable relationship to each other in terms of severity. When the grievor declined to sign off in this situation when other employees were happy to work the overtime, it was not a particularly serious matter, but the penalty selected was also not a particularly serious one. Finally, the grievor had considerable seniority and a good work record. Thus, he would ordinarily be entitled to a lesser penalty than would other employees with worse records. But here, it would be difficult to think of a lesser form of discipline which would motivate the grievor to change, which would seem appropriate

6 to the wrong, and which be more appropriate given the grievor's record. Therefore, in this case, the discipline was reasonable or just. As can be seen, arbitrators will undertake a very detailed analysis with a focus on whether the discipline was just. Along the same lines, in: Butcher Engineering Enterprises Limited, the grievor was permanently removed from all positions involving the operation of a forklift because of her unsafe forklift driving. The employer offered the grievor a lower-paid position as a packager and the grievor accepted. However, the union alleged that this permanent demotion was too severe a penalty for the grievor's misconduct. Despite significant training in forklift operation over the years, the grievor had a terrible accident record. As a result, the grievor had been warned numerous times and was temporarily demoted from her forklift driver position on three separate occasions before the final accident. The final incident occurred in August 2008, when she hit a safety pole made of steel and perforated it. She did not check for damage or report the accident. The employer viewed the incident as the culminating incident, requiring permanent demotion. The employer believed that the grievor was distracted. This was a serious situation which could have resulted in serious injury if the grievor had hit a person rather than the pole. The employer argued that instruction, counselling and corrective action were unsuccessful in getting a safety message through to the grievor. Considering the extensive driver training and the safety education and the prior corrective actions taken by the employer, the only conclusion which could be reached was that the grievor knew what was expected in terms of the safe operation of the forklift. Thus, according to the employer, it was reasonable to weigh the grievor's record and to conclude that if the verbal and written warnings, and the three-day, five-day, and 15-day demotions did not correct the grievor's conduct, nothing would. Further, there was a record of clear progressive discipline and it was now appropriate to remove the grievor permanently from any position involving forklift driving. Also, the employer alternatively argued that the collective agreement allowed this type of discipline (the demotion) where the employee was unsuitable for the position. The arbitrator conducted the same type of analysis as in A&M: 1. Did the grievor's conduct justify a disciplinary response? The arbitrator decided that the grievor's forklift hit the pole with considerable force when she pierced it, and this kind of conduct justified a disciplinary response. Also, it was actually conceded by the union that some form of discipline was required. 2. Was the discipline imposed excessive? The arbitrator noted that the employer disciplined by removing the grievor permanently from any position involving the operation of a forklift and offered her a packager position, which she had previously held.

7 The collective agreement allowed just-cause discipline. The arbitrator noted that for just cause, the discipline had to bear a reasonable relationship to the seriousness of that employee's wrong. However, on occasion, the employee's misconduct alone might be so serious that, regardless of the other factors, the employee simply cannot be allowed to remain employed. In this case, the grievor's misconduct was of serious concern. Also, the discipline had to follow progressive discipline principles. In this case, the employer gave plenty of warnings and demotions of increasing lengths. The employer appropriately used progressive discipline. Further, the discipline had to be corrective and not punitive. In this case, a permanent demotion did not allow for the possibility of correction since there was no way for the employee to demonstrate that he or she corrected the improper behaviour. However, at some point, there would be no expectation that the employee would learn from further corrective discipline, when the earlier discipline was not successful in improving the conduct and when there was nothing to suggest that imposing further discipline would bring about the desired change. The arbitrator concluded that there was nothing in the collective agreement or in the general nature of just cause for discipline regimes to stop the employer from imposing the disciplinary demotion. That said, the arbitrator stated, But I am of the view that any permanent disciplinary demotion should be scrutinized on the same basis as a discharge and that any permanent disciplinary demotion is only just when there is no expectation that the employee will learn from corrective discipline. Here, it was not unjust simply to continue to employ in another job instead of completely discharging the employee. The arbitrator emphasized that if a discharge would have been an excessive penalty, then a permanent demotion would have been excessive. But here, it was not seen as excessive. Also, the discipline had to be appropriate for the particular employee, given his or her length of service, previous employment and discipline record, etc. The arbitrator noted that the grievor was employed for more than 12 years. She was a single mother and the sole support for her child. The arbitrator stated, I conclude that this combination of the grievor's seniority and her personal circumstances are such as to entitle her to somewhat better treatment than might be the case for another employee. However, in this instance, given the seriousness of the incident, the grievor's record of progressive discipline, and the absence of evidence to suggest that the grievor might learn from less serious discipline, the arbitrator found that the grievor's seniority and personal circumstances were insufficient reasons to warrant an adjustment in the penalty. Therefore, the arbitrator decided that the discipline imposed was reasonable and just. This case shows how an employer can use progressive discipline to justify a serious permanent demotion. In another case: Otis Canada Inc., an employee was discharged for failing to wear fall-protection equipment on a construction site, contrary to the company's safety policy. That policy required employees entering a company construction site to wear fall-protection equipment at all times. On the other hand, the union did not dispute that the grievor, an employee with 37 years of seniority, breached the safety policy, but asserted that he simply forgot to put the harness back on after using the washroom that day and that he

8 had not put himself or anyone else at risk as a consequence. Thus, the union argued that the discipline (discharge) was excessive in the circumstances. The company had an extensive safety policy and safety discipline procedure. Under that discipline procedure, the minimum discipline for a violation of the company's policy with respect to fall protection was an automatic two-day suspension with a citation (the minimum was less for other violations). Yet, the disciplinary procedure also referred to the possibility of imposing discipline beyond the minimum stipulated, depending on individual circumstances. It stated, Supervision must consider the seriousness of the violation(s) to help determine what disciplinary action to take beyond the minimum required. It is recommended that the applicable Field Employee Relations Manager or NAO Labour Relations be contacted for consultation in advance of either a suspension or discharge. The employer argued that the supervisor indeed consulted with the Field Employee Relations Manager and the Superintendent of Maintenance, that discharge was the appropriate penalty in the circumstances. In reaching this decision, they considered the employee's earlier documented verbal warnings given to him in 2000 regarding wearing safety glasses. The supervisor did not take the employee's lengthy seniority into account in assessing the appropriate disciplinary response. The supervisor indicated that he felt that discharge was appropriate since he was not confident that the employee would comply with the company's safety policy given these previous incidents and given his conversation with the employee later in 2000 involving a refusal to wear a harness in a machine room because of the danger of electrocution; he was warned at this meeting that he would be fired if he did not comply with the safety policy. The union agreed that some form of discipline was necessary, so the question was about whether discharge was too excessive in the circumstances. The arbitrator noted that it had the discretionary power to substitute another penalty for discharge given the nature of the collective agreement. The arbitrator concluded that the minimum (two-day suspension) was too lenient in the circumstances since the employee did have an earlier safety citation involving a documented verbal warning for failing to comply with the company's safety policy. The employee was also verbally warned that he would be fired if he did not comply with the company's fall protection policy. The arbitrator noted that the employee had said that the rule of wearing a harness at all times on a construction site was silly. Thus, the arbitrator concluded that the employee's attitude toward the policy made him more careless about complying with its terms when he should have been more diligent about doing so given the notice given to him only two months earlier. Therefore, a substantial disciplinary penalty was warranted in the circumstances in the interests of deterrence. However, the arbitrator disagreed corrective discipline would not be effective or was impossible given that he indicated that he would not wear a harness in a machine room-he had a right to refuse unsafe work, and this could not be used to justify a discharge. Also, the employee's lengthy seniority and length of service with the company should have been considered in assessing what penalty was just and reasonable. Thus, the arbitrator decided that the discharge was excessive in the circumstances. The arbitrator decided that a five-day suspension should be substituted for his discharge. Thus, in some cases, where the penalty is found to be excessive, the arbitrator can substitute a lesser, more appropriate, penalty. It is important for employers to consider the circumstances and ensure that a certain degree of discipline is required prior to hastily imposing the discipline.

9 The courts have decided in accordance with these principles set out in tribunal decisions. For instance, in Chapman, the court allowed the former employee's wrongful dismissal claim. In this case, the employee, a supervisor, engaged in an altercation with a lower-level co-worker, causing damage to the other employee's apartment and purporting to fire the employee. He was instantly dismissed. The court concluded that the objective of the employer's health and safety manual was to apply a uniform and consistent procedure, and the former employee was entitled to the benefits of that policy and its principles of progressive discipline. The co-worker had been disciplined under the policy using progressive discipline, and so should the former employee. As a result, the former employee was awarded damages of $19,500 in lieu of six months notice. Most court decisions involve Ministry of Labour prosecutions, which do not deal with the appropriateness of discipline, but rather deal more with whether a company and perhaps even its supervisor is guilty of an offence. For instance, in Jetters Roofing, since the company and the supervisor could not prove the due diligence defence, both were convicted of the offence. In this case, one worker was killed and three others injured when they pushed scaffolding into hydro lines. The main point in this case is that the court found that, although the company had a health and safety policy forbidding anyone from bringing a scaffold within three metres of an energized overhead conductor, it did not have an enforcement procedure in place. Thus, they could not show that there was due diligence. The company failed to: have a supervisor in place to ensure that the Act was complied with and to advise the workers of the dangers of using a scaffold near the power lines; give one of the workers the necessary authority to fulfil the duties of a supervisor at the site; give the workers necessary safety information about the scaffolds; and inquire into how the workers were carrying out their duties or into any potential dangers to the workers. Thus, the company was found guilty of failing to ensure that prescribed safety measures were carried out at the project and failing to provide information, instruction and supervision to workers to protect their health and safety. The supervisor had an obligation to inquire how the crew was going to do the job they were sent there to do. He had to put his mind to the problem of how the crew was going to move the scaffold around the corner past the uneven ground, and he would have, or should have, at least realized the employees would likely take the easiest way around the blockage, a route that would bring them much too close to the high voltage hydro lines. Thus, the supervisor was found guilty of the counts of failing, as a supervisor, to ensure that the workers worked in the required manner and with the required protective devices, measures and procedures, and failing to advise workers of the existence of a danger to their health and safety. In another prosecution, in Bartram, there was an incident of carbon monoxide exposure which injured a crew of workers. The employer was found to be responsible, but the supervisor was found not to be responsible. There were no discipline or enforcement issues, only training deficiencies. In fact, there was no training whatsoever regarding air quality or carbon monoxide exposure. The court found that these deficiencies contributed to the offences, and were the responsibility of the employer, and not the supervisor. The court found that there were systems in place to address the hazards of which the supervisor was aware, and that he had taken reasonable steps to ensure the effective operation of that system. The supervisor proved due diligence, and was thus found not guilty of the offences.

10 However, the employer had to bear the responsibility because the employer had the duty in law to appoint supervisors who were competent persons, who were qualified because of knowledge, training and experience to organize the work and its performance, and were familiar with the Act and its regulations that apply to the work and had knowledge of any potential or actual danger to health or safety in the workplace. Thus, the employer was not able to prove due diligence, and was thus found guilty of the offences. Sources: Edwards, C. & Humphrey, C. Due Diligence under the Occupational Health and Safety Act: A Practical Guide (Toronto, Carswell, 2000) A&M Cookie Company Of Canada v. United Food and Commercial Workers International Union Local 175, 2005 CanLII (ON L.A.) Butcher Engineering Enterprises Limited v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), 2009 CanLII (ON L.A.) International Union of Elevator Constructors Local 90 v. Otis Canada Inc., 2001 CanLII 9205 (ON L.R.B.) Chapman v. ATC - Frost Magnetics Inc., [1997] O.J. No R. v. Jetters Roofing and Wall Cladding Inc. and Roger K. Blouse, [2000] O.J. No Ontario (Ministry of Labour) v. Bartram, 2009 ONCJ 29 By Christina Catenacci LL.B., Assistant Editor and Yosie Saint-Cyr, LL.B., Managing Editor at HRinfodesk.com Published on HRinfodesk---Canadian Payroll and Employment Law News and Developments HRinfodesk is an information and news service published by First Reference, which includes employment law news and commentaries for every jurisdiction in Canada, a Library of Articles, FAQs, a Calendar of Events, Important Dates and an HR Internet Directory for expanded research. Our search tools will help you to quickly find results by jurisdiction, topic, date, keyword and article number. For the latest employment law news and a 10-day trial, click here. These articles are made available to give you general information and understanding of the law, not to provide legal advice about specific situations or problems. These articles also offer general comments on legal developments of concern to businesses. There is no lawyer-client relationship between you and the author or publisher. Every effort has been made to ensure the accuracy and timeliness of this information. These publications should NOT be relied upon as legal advice or opinions. The reader should always obtain legal advice from a qualified lawyer or other qualified professional, which will be responsive to the case or circumstance of the individual.

11 Please note that the content provided in this article or any content contained in or made available through any third party website linked to from this article and/or HRinfodesk, is provided as is without representations or warranties of any kind. All representations and warranties in respect of content or third party content, express or implied, including, without limitation any representations to warranties or conditions regarding accuracy, timeliness, completeness, non-infringement, merchantability or fitness for any particular purpose are hereby disclaimed First Reference Inc.