Unsafe operation of equipment is an easy way to get dismissed or
charged with Occupational Health and Safety Act – or
sometimes even criminal – offences. A labour arbitrator has
upheld the dismissal of a mining employee for driving a trolley at
excessive speeds in a mine, causing a derailment and significant
damage, costing the company more than $100,000.00.
The trolley was used underground to transport ore cars loaded
with "muck" ore or waste to "dumps". The
trolley weighed 20 tonnes. The arbitrator found that the speed of
the trolley was under the employee's control. The evidence was
that the track was in good condition. The arbitrator found that the
train was traveling "well in excess" of the maximum
allowable speed of 12 km/hr when the derailment occurred, and
probably at least 19 km/hr. The 12 km/hr maximum was set by the
Mines and Mining Plants regulation under the Ontario
Occupational Health and Safety Act.
The employee was therefore guilty of operating the train at
excessive speed, which constituted reckless conduct. The employee
had short service. He had other safety-related discipline on his
record. His reckless operation of the train could have caused
serious personal injury or death. He refused to accept
responsibility, offer an apology or display remorse.
The arbitrator noted that the "underground mine environment
is a dangerous and extremely safety-sensitive one". It was
appropriate, in the circumstances, to discharge the employee.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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