In a recent arbitration decision involving a utility company, an Ontario arbitrator reiterated the importance of trust in the employment relationship and upheld the dismissal of a seven-and-a-half-year employee with no disciplinary history for covering up a safety violation.
On October 9, 2012 the grievor, a supervisor, was working with his team to remove gaskets from an old generator. It was known that gaskets could be made of asbestos. The workplace policy was to assume that gaskets were made of asbestos and confirm with reference to documents in the workplace computer system. The grievor visually concluded that the gasket was not made of asbestos but did not complete the full search. Because of this decision the grievor authorized his team to use mechanical grinders to remove the gaskets without the specialized safety equipment necessary for handling asbestos. This caused asbestos to be possibly released into the air and jeopardised the health of the crew he was overseeing.
Another employee made a complaint about the dust and possible asbestos exposure resulting from the grinding. Contrary to proper procedure, the grievor did not file any reports mentioning the complaint or the possibility of asbestos. The worker's complaint was eventually investigated by the employer and the grievor made statements that he had identified from a logo on the material that there was no asbestos. This was determined not to be true.
As a result of the incident and the grievor's failure to make the safety incident known, the grievor was terminated. The union argued that the penalty was too harsh, based in part on the employer's alleged failure to provide an inventory of asbestos containing materials pursuant to the workplace asbestos management policy.
The grievance was dismissed and the termination upheld. First, the harm caused by the grievor was significant. The grievor had failed to properly assess the safety risks of the situation, was negligent and created serious health risks for other employees. On its own, however, the arbitrator noted that this harm may not have been enough to justify termination, given no previous disciplinary history and other factors.
However, the employee's failure to respond to the concerns raised by the worker's complaint and the grievor's attempts to cover up what had happened did provide just cause for dismissal. The arbitrator found that this misconduct fundamentally breached the trust between an employer and employee that is necessary in a workplace where safety rules are of the utmost importance.
This case serves as a reminder that loss of trust can be fatal to the employment relationship. Where key issues are in play, such as workplace health and safety, a lack of integrity and honesty on the part of a grievor may provide just cause for discharge. This is the case even where a grievor has an otherwise unblemished disciplinary history.
In the health and safety context, for the sake of clarity, the implementation of safety management systems and training should include emphasis on the importance of honesty and integrity in reporting of safety incidents. It should be made clear to employees that failure to demonstrate honesty in the implementation of safety management will result in serious discipline, up to and including discharge. The goal is to ensure that health and safety risks are fully understood and managed effectively.
Honesty may also be emphasised in other employment policies, for example in relation to conflict of interest or financial dealings. In many industries, dishonesty will be grounds for dismissal where trust and integrity is integral to the employment relationship.
Norton Rose Fulbright Canada LLP
Norton Rose Fulbright is a global legal practice. We provide the world's pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers based in over 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.
Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.
Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.
Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members ('the Norton Rose Fulbright members') of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients.
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.