In this instance a mining trolley
became derailed from its' tracks causing approximately $200,000
worth of equipment damage and 4 days of production loss. These
trolleys weigh approximately 20 tons when empty, but can weigh up
to 37 tons when fully loaded with muck ore or waste. The grievor in
this case was the lead operator of the trolley at the time of the
accident. The decision to terminate the grievor was the result of a
thorough workplace investigation.
The main factual dispute was the
root cause of the accident. The union argued that a broken rail
cause the trolley to become derailed, while the employer asserted
that the grievor was operating the trolley at a reckless speed. The
employer asserted that the broken rail was a consequence of the
accident, rather than the cause. The Arbitrator reviewed many days
of complex evidence provided by experienced (but not expert)
witnesses with respect to trolley and track mechanics. Ultimately
Arbitrator Surdykowski was tasked with determining the extent of
the grievor's responsibility for the accident and whether the
employer had just cause to terminate based on that
Often in cases with unclear or
complex competing evidence a decision maker will weigh evidence
based on the credibility and reliability of the witness providing
it. The grievor's evidence failed in a number of respects on
The grievor's ability to
estimate distance was at odds with other witness testimony and
The grievor refused to
acknowledge the seriousness of the accident;
The grievor refused the extent
and cost of the damage; and
The grievor downplayed the
distance it took for his trolley to come to a complete stop.
Surdykowski found the grievor's evidence to be self-serving. In
this case, the time that the trolleys required to travel back and
forth between different stops (i.e. cycle times) was in issue as a
reflection of the trolley's speed. The grievor's
explanation that his "cycle times" were faster was that
"heavier material loads faster". The Arbitrator correctly
pointed out in the decision that this statement defies the laws of
physics. These issues in the grievor's testimony led the
arbitrator to give zero weight to his evidence. Consequently, the
employer's theory of the trolley being operated at a reckless
speed was preferred versus the "broken rail" theory put
forth by the union.
On the issue of whether termination
was appropriate, the Arbitrator considered length of service,
previous discipline, and evidence of remorse or admitting
responsibility. At no point did the grievor apologize or admit to
any level of responsibility. Furthermore the grievor was a
relatively short-service employee with other safety related
incidents on his record within the previous 2 years. The
combination of these factors led to the decision that termination
was appropriate in the circumstances and the grievance was
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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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