In a recent decision, an Ontario arbitrator has upheld the dismissal of a grievor with 37 years of service for repeated violations of the company's health and safety rules and policies.1 The decision emphasizes the right of employers to impose significant discipline for violations of the Occupational Health and Safety Act (OHSA) and related company policies and programs. It also signals to workers that their long service may not overcome significant or repeated breaches of health and safety policies or the OHSA.

Background

The 58-year-old grievor had been employed by the company, which operates as a lead recycling facility, for 37 years. He was terminated in May 2012, following two consecutive violations of the company's health and safety policies. Both violations related to his failure to be clean shaven and wear his personal protective equipment (PPE), especially his respiratory mask.

The use of a respiratory mask was of particular importance in this workplace—lead is a designated substance under the OHSA.2 As a result, the company was subject to stringent health and safety regulations designed to protect the safety of employees who may exposed to this substance during the recycling process.

Conscious of its obligations, the company had in place a health and safety policy and program that recognized the need to use PPE. The policy required the grievor to use his respiratory mask (among other types of PPE) and be clean shaven to ensure the mask fit properly.

The grievor's disciplinary history

The two incidents giving rise to his termination were the last in a series of seven incidents related to health and safety that occurred in the last year of the grievor's employment. The grievor's disciplinary record included numerous warnings related to his unsafe conduct, a recent 25-day suspension for violating the company's health and safety policies, and a re-assignment to a position with less safety-oriented tasks. The grievor's re-assignment came with a warning that future breaches of the company's health and safety policies would result in his termination.

The arguments for and against reinstatement

Two months after being terminated, the grievor apologized for any hardship his misconduct may have caused and acknowledged in the written apology that some of his behaviour may not have been appropriate. He suggested he may have been distracted when he committed his last two breaches of the company's health and safety policy. He emphasized his long service and suggested he would pay greater attention to health and safety if he were reinstated by the arbitrator.

The company asked the arbitrator to uphold the discharge. It submitted that the grievor had failed to respond to the company's repeated efforts to correct his behaviour through warnings and suspensions, including a clear warning that the grievor would be terminated for future misconduct. It noted that the grievor had been a member of its joint health and safety committee and had been made aware of the company's requirements with respect to health and safety. The employer further submitted there was no indication that the grievor's behaviour would change if he were reinstated.

Decision

The discharge was upheld.

The arbitrator found that the grievor's extensive disciplinary record suggested his misconduct was not a result of a lapse of judgment due to distraction, but rather proof he was an irredeemable employee. Looking to the grievor's written apology, the arbitrator found it incomplete, indicating as it did that "some" of his behaviour "may not have been appropriate." The arbitrator was unable to conclude that the grievor would amend his behaviour if he were reinstated.

The arbitrator acknowledged the grievor's lengthy service but concluded that lengthy service, by itself, has less mitigating value in cases where the misconduct relates to health and safety violations. When terminated for health and safety violations, the arbitrator concluded, a grievor must acknowledge and demonstrate true remorse for the misconduct in order to raise the mitigation value of length of service to a level that would persuade an arbitrator to reinstate the employee.

Comment

Long service has traditionally been a mitigating factor given significant weight by arbitrators evaluating whether an appropriate penalty has been imposed for an act attracting discipline. This decision qualifies this factor in respect of misconduct related to health and safety. To rely on lengthy seniority to justify reinstatement after serious or repeated health and safety violations, a grievor must provide a timely acknowledgment of the misconduct and an apology that shows sincere remorse and an acceptance of responsibility.

This decision also suggests a willingness by arbitrators to emphasize the importance to employers of enforcing health and safety policies and procedures in the workplace. Note the following statement by the arbitrator:

...even a single serious violation of the OHSA or the employer's reasonable health and safety workplace rules or policies constitutes just cause for significant discipline, up to and including discharge. Similarly, a pattern of health and safety violations which in isolation are relatively minor will properly attract progressive discipline and ultimately...discharge if the employee does not correct his behaviour.

The company bolstered its position at arbitration by giving evidence of its efforts to ensure the workplace operated in accordance with the OHSA and employees recognized the potential for serious injury or illness when the OHSA and related health and safety policies were not followed. Employers are well advised to consider this issue and lead evidence at arbitration of their own efforts to enforce health and safety in the workplace if health and safety concerns are a factor giving rise to significant discipline or termination.

Although this decision arose in a unionized workplace, many of the principles involved would support the right of a non-unionized employer to dismiss an employee in similar circumstances.

Footnotes

1 Tonolli Canada Ltd. v. United Steelworkers, and its Local 9042, 2013 CanLII 15108 (ON LA).

2 R.S.O. 1990, c. O.1.

Norton Rose Group

Norton Rose Group is a leading international legal practice. We offer a full business law service to many of the world's pre-eminent financial institutions and corporations from offices in Europe, Asia, Australia, Canada, Africa, the Middle East, Latin America and Central Asia.

Knowing how our clients' businesses work and understanding what drives their industries is fundamental to us. Our lawyers share industry knowledge and sector expertise across borders, enabling us to support our clients anywhere in the world. We are strong in financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and pharmaceuticals and life sciences.

We have more than 2900 lawyers operating from 43 offices in Abu Dhabi, Almaty, Amsterdam, Athens, Bahrain, Bangkok, Beijing, Bogotá, Brisbane, Brussels, Calgary, Canberra, Cape Town, Caracas, Casablanca, Dubai, Durban, Frankfurt, Hamburg, Hong Kong, Johannesburg, London, Melbourne, Milan, Montréal, Moscow, Munich, Ottawa, Paris, Perth, Piraeus, Prague, Québec, Rome, Shanghai, Singapore, Sydney, Tokyo, Toronto and Warsaw; and from associate offices in Dar es Salaam, Ho Chi Minh City and Jakarta.

Norton Rose Group comprises Norton Rose LLP, Norton Rose Australia, Norton Rose Canada LLP, Norton Rose South Africa (incorporated as Deneys Reitz Inc), and their respective affiliates.

On January 1, 2012, Macleod Dixon joined Norton Rose Group adding strength and depth in Canada, Latin America and around the world. For more information please visit nortonrose.com.

Norton Rose will join forces with Fulbright & Jaworski L.L.P on June 1, 2013, creating Norton Rose Fulbright a global legal practice with significant depth of expertise across the USA, Europe, Asia, Australia, Canada, Africa, the Middle East, Latin America and Central Asia.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.