Canadian Safety Reporter

December 2014

Focuses on occupational health and safety issues at a strategic level. Designed for employers, HR managers and OHS professionals, it features news, case studies on best practices and practical tips to ensure the safest possible working environment.

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2 Canadian HR Reporter, a Thomson Reuters business 2014 CSR | December 2014 | News Serious safety breach not serious enough for dismissal Worker should have known better but he was a long-term employee and acknowledged his mistake: Adjudicator BY JEFFREY R. SMITH AN ALBERTA COMPANY did not have just cause to dismiss a worker, even though the worker willfully made a serious breach of the company's safety policy, an adjudicator has ruled. Darryl Shuya worked as a ship- ping operator in a Lloydminster, Alta., oilseed processing facility run by ADM Agri-Industries. The facility crushed canola and shipped the resulting oil for food applications, and also pro- duced canola meal pellets for livestock feed. Shuya was hired in October 2001. On March 24, 2013, Shuya was three hours into a 12-hour over- night shift when the unloader he was supposed to be operating wasn't working. Unloaders were used to move canola pellets from large bins to hopper cars or trucks and some- times they got stuck because of pellet clumping in the bin. When unloaders were stuck, the common procedure was to "jog" the motor's electrical switch off and on to give the sweep arm inside the bin momentum to break free. If that didn't work, the clogged pellets would have to be accessed through a hole in the side of the bin. In this case, Shuya thought he could get the motor going if he helped it turn. He took a pipe wrench and attached it to the shaft of the motor's gear box, then turned the motor on. Though he knew proper pro- cedure was to lock out a machine before working on it, he thought he wouldn't be able to turn the shaft with just the wrench and would need to turn the motor on. When the motor started, the pipe wrench pushed Shuya's hand against the motor and broke one of his fingers. Shuya was taken to a hospital and treated. He returned to work the rest of the shift on light duty. Breach of safety policy resulted in dismissal On March 28, ADM suspended Shuya pending an investigation of the accident. It was concerned with the risk Shuya had taken, particularly since the company had updated its safety and work rule policy earlier that year in order to crack down on what it perceived to be a rash of workplace accidents. The safety policy had guide- lines for locking out equipment and performing a job hazard analysis before starting any task. It also included the concept of cardinal violations, which were defined as "knowingly willful and grossly negligent violations that may result in serious physical injury, death or significant prop- erty damage." Though the policy provided for a progressive disciplinary process for violations, it also stip- ulated progressive steps could be skipped for cardinal violations. Shuya and other employees were trained and tested on lock- out procedures, job hazard anal- yses and the entire safety policy, and Shuya acknowledged he un- derstood it. ADM determined in its in- vestigation that Shuya was well- trained and aware of its policies and he was lucky he didn't suffer a more serious injury. It also found he failed to per- form a job risk analysis and didn't follow the procedures for locking out the unloader and bin. As far as the company was concerned, Shuya's actions will- fully and knowingly violated its safety rules and demonstrated negligence, and this amounted to a cardinal violation under the safety policy. ADM terminated Shuya's em- ployment for cause on April 8, 2013. Shuya acknowledged that he violated safety rules and he didn't think he would be injured by his actions. However, he said he had worked for ADM for more than 11 years without any disciplinary issues, so termination was too harsh for his misconduct. He pointed to two other seri- ous safety violations a few years earlier in which one short-term employee with prior discipline was dismissed while another long-term employee with no previous discipline was not dis- ciplined. This showed ADM was in- consistent in its discipline, said Shuya. Zero-tolerance rules more common The adjudicator noted that zero- tolerance safety rules are becom- ing more common in plants like ADM's where there is a risk of serious injury. However, the adjudicator also pointed out that it has been es- tablished that for misconduct to constitute just cause, it must be wilful, or "being bad on purpose." The adjudicator found that Shuya's actions were deliberate and not a momentary lapse. He knew what he was doing and that they weren't following safety protocols. Under ADM's safety policy it was serious misconduct and the adjudicator agreed. The adjudicator also found the fact that Shuya was aware of and had acknowledged ADM's safety policies, which specifically named violation of lockout pro- cedures as cardinal violations. The enforcement of the rules was important to ADM so work- ers wouldn't become complacent and follow unsafe practices in the workplace. This emphasized the serious- ness of Shuya's misconduct, said the adjudicator. Strong mitigating factors However, the adjudicator agreed with Shuya that as a long-term employee with no prior disci- plinary record, that made it rea- sonable to expect that progres- sive discipline was an option. The other examples of workers with serious safety violations were before the new safety poli- cy, and while the policy indicated cardinal violations could lead to dismissal, it didn't say it was au- tomatic dismissal. What consti- tuted dismissal wouldn't neces- sarily be clear to employees, said the adjudicator. "Though Shuya took a wrench to the bin and, therefore, some measure of planning had to be present, I find there was an ele- ment of spontaneity in his ac- tions and…a 'freezing of intel- lect,'" said the adjudicator. "On the facts, wilful miscon- duct should not be found." The adjudicator found Shuya did not intend to harm ADM and his unsafe conduct involved him "trying to get the job done" for the benefit of ADM. Shuya acknowledged his mis- take and accepted responsibility for it and there was no damage to equipment. As a result, termination was a disproportionate response to Shuya's misconduct, said the ad- judicator. The adjudicator ruled that a one-month suspension was ap- propriate discipline in the cir- cumstances. However, Shuya had found other work — reducing his lost wages to four months' worth — and didn't request reinstate- ment, so ADM was ordered to pay three months' wages to Shuya. For more information see: Shuya and ADM Agri-Industries Co., Re, 2014 CarswellNat 3819 (Can. Adj.).

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