Canada: Recent Construction Industry Safety Violation Discipline Decisions: Due Diligence Means Enforcing Rules

Last Updated: May 16 2014
Article by Clarence Bennett and Alison Strachan

Effective health and safety programs must meet provincial occupational health and safety standards and employers must always exercise due diligence in taking steps to meet those standards. Ongoing enforcement of a health and safety program is a must. If not, it is arguable that the employer is not meeting its due diligence requirements and may face unnecessary difficulty defending an occupational health and safety prosecution. While progressive discipline is almost always followed by arbitrators, the abbreviated recent cases below provide examples of what other issues arbitrators look at when determining disciplinary consequences for health and safety violations. From where we sit, arbitrators are taking violations of health and safety rules in the construction industry seriously. Why? A good explanation can be found in paragraph 8 of the EllisDon Ltd. v. LIUNA, Local 506 2013 CarswellOnt 16244 (discussed in more detail below):

The construction industry is very dangerous. There are a very high number of injuries in this industry every year. Safety on a construction site is rightfully taken very seriously. The Ministry of Labour requires every employee working on a construction job site to receive job site specific orientation pursuant to which the employee is alerted to site specific hazards such as the presence of chemicals or overhead wires...


Atco Electric Ltd. and C.E.W.A. (Gelych), Re 2012 CarswellAlta 1400 (Power, Bartee and Neuman (dissent))

What happened?

The grievor was a Powerline Technician and was a Team Lead. The grievor intentionally approached a co-worker slowly in a company vehicle. In doing so, he came so close that if he misjudged the distance between the vehicle and the co-worker, there was the potential for injury. There was also an incident where the grievor attended a high voltage display meeting and made comments during the course of a presentation at a fire hall that were unprofessional and harmful to the employer's reputation. The company investigated and determined that the grievor's behaviour was reckless, it put co-workers safety at risk and the comments he made at the meeting were unprofessional. He was then removed as Team Lead and demoted to Powerline Technician with a corresponding reduction in salary.

What did the arbitration board do?

The Board at Atco Electric Ltd. found that discipline was warranted, but that demotion was excessive given the previous good record of the grievor, his moderate length of service, the isolated and spur of the moment nature of the event, and the grievor's agreement that he would live up to the employer's expectations. The Board reinstated the grievor as Team Lead following a one week suspension.


National Steel Car Ltd. and U.S.W., Local 7135 (2012), 110 C.L.A.S. 372 (Chauvin)

What happened?

A radio control crane operator who had recently returned from a 128 day disciplinary suspension was insubordinate by walking out of a meeting with his supervisors, violating plant rules by improperly and unsafely carrying a load with an uneven spreader bar, and dishonest with management in their investigation. The employer discharged the crane operator.

What did the arbitrator do?

The discharge was upheld. The arbitrator said the grievor's improper and unsafe conduct, dishonesty, and insubordination were serious culminating incidents. The employer's safety manual made it clear how a spreader bar is used and specifically stated that the improper use of a spreader bar was a prohibited unsafe act that can injure co-workers and which is subject to discipline. The grievor was aware of the proper use of the spreader bars and had signed off on a previous reinstatement as having received refresher safety training specifically on spreader bars:

...On the facts of this case, it appears to be inexplicable why the Grievor would have improperly used a spreader bar properly, especially so shortly after he had been reinstated to employment. The Grievor chose to not testify. Accordingly, we have no explanation whatsoever from the Grievor as to why or how this could have happened.


Resource Development Trades Council of Newfoundland and Labrador ("RDTC") and Long Harbour Employers Association ("LHEA") 2013 CanLii 88826 (Oakley)

What happened?

The grievor, a scaffolder, was terminated after failing to comply with a six foot tie-off rule. Compliance with this rule was site safety absolute and the prescribed penalty was immediate termination. The union grieved stating that it did not agree that the rule was site safety absolute, that it was not a reasonable rule as it was inconsistent with the collective agreement, and that the employer applied the rule inconsistently.

What did the arbitrator do?

The arbitrator upheld the discharge saying the rule was applied consistently and that it was reasonable and communicated to the grievor:

...the six foot tie-off rule is reasonable, having regard to the risk of health and safety from falling from the height of six feet or higher, and the fact that a six foot rule tie-off is in effect at other construction sites in Newfoundland and Labrador and in other Provinces. The rule was clear and unequivocal, having regard to the statements of the rule in the Employee Handbook, the orientation slides and the KBAC Constructors wallet card. The rule was brought to the attention of the Grievor in the Employee Handbook and at the orientation. The Grievor signed the Acknowledgement of Receipt Form in the Employee Handbook. He signed the FLHA Form, that listed the six foot tie-off rule, before he started to perform the task of modification of the scaffold. The Grievor was notified by the Handbook and the orientation slides that breach of the rule would result in discharge. Although the penalty of discharge is not binding on the Arbitrator, the fact that the penalty was communicated to the Grievor is an indication of the seriousness of violating the rule.


Tonolli Canada Ltd. and USW, Local 9042 (Marsiglia), 2013 CarswellOnt 3855 (Surdykowski)

What happened?

The grievor, who had 37 years' seniority, was discharged for health and safety related incidents occurring on two consecutive days that the employer considered culminating incidents: arriving at work without being clean shaven. The union acknowledged the misconduct but submitted that discharge was excessive. The grievor had previously received warnings for failing to be clean shaven, failing to wear a hard hat, safety glasses and mask, and failing to wear a respirator and had previously promised that he would do better at meeting these rules.

What did the arbitrator do?

Upheld the dismissal saying the employer had reached a reasonable conclusion that the grievor could not be rehabilitated:

...this case presents a 58-year old grievor with 37 years of service (at the point of discharge) who is guilty of two incidents of health and safety related misconduct on consecutive days, less than a month after receiving a written warning and what amounted to a counselling for related health and safety misconduct (on April 11, 2012), and a little over 4 months after serving a 25-day suspension for multiple misconducts during the 6-week period after he was disciplined on October 12, 2011. The grievor's evidence and wholly inadequate 'apology' demonstrate that he still does not fully acknowledge or accept responsibility for his misconduct on either April 30 or May 1, 2012. The Company has reasonably concluded that its efforts to rehabilitate the grievor have been fruitless, and that it can no longer tolerate his presence in the workplace.


EllisDon Ltd. v. LIUNA, Local 506 2013 CarswellOnt 16244

The grievor was a short service employee (14 working days) who was observed on a job site that was not his own. A video showed that he parked his car inside the gates of the job site and that construction activity was taking place on the job site. The video showed the grievor walking around while not wearing a hardhat or reflective vest as required by the company's safety policy. He was also shown walking in close proximity to moving equipment. At one stage, he nearly walked into a mini excavator as it swung around toward him. He was seen stepping into a trailer with a lit cigarette, also against the company's policy, and then exiting again with a lit cigarette. The grievor left the job site and walked to a liquor store where he purchased a six pack of beer. He returned to the job site and carried the beer into the trailer. Shortly after, he was seen exiting the trailer with the six pack of beer which he placed in his car. The decision was made to terminate.

What does this mean to you?

Progressive discipline is pretty much the same when it comes to occupational health and safety as it is to other disciplinary issues (i.e., insubordination, etc.). It is critical to organizational safety for employers in all industries, including construction, to make discipline for occupational health and safety violations a priority. Progressive discipline can make the difference for an organization charged with an offence in establishing that it has taken "reasonable steps to ensure the effective operation of the system." As noted in this edition's Safety begins with you: what construction employers in Atlantic Canada need to know about occupational health and safety consistently enforce rules when it comes to health and safety.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Clarence Bennett
Alison Strachan
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Canada LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Canada LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions