A Newfoundland and Labrador worker’s violation of his employer’s working-at-heights rules gave the employer just cause to dismiss him, an arbitrator has ruled.
Greg Dyson was a maintainer operator for Iron Ore Company of Canada (IOC), a producer of iron ore pellets and concentrate based in Labrador City, N.L. He was hired in 2012 and had several instances of discipline, including a three-day suspension for not following proper working-at-heights procedure and two violations for being late for work — the latter resulting in a 10-day suspension.
In the summer of 2014, IOC implemented zero tolerance rules regarding certain behaviours that had a high safety risk and serious consequences to the safety of the workplace. One of these rules dealt with working at heights, which specified that any employee working above the ground must be tied off with a line or stay at least six feet away from any roof edge if not tied up. The only exception was when employees were at the top of a ladder, at which point they were required to go directly forward six feet until away from the edge. Permits were also required for jobs involving working at heights, so the company could ensure proper safety measures would be in place. This was of particular concern for IOC as there had been some incidents, including a couple of fatalities, related to employees working at heights and the company had been struggling with employees not following the rules.
In late morning of July 25, 2014, two supervisors were standing outdoors near the building when they noticed an employee on the roof of the warehouse. They saw the employee walk close to the edge of the roof and peer over the side before walking back out of sight. The employee was wearing dark blue IOC coveralls and a grey hard hat.
They knew the employee was close to the edge of the roof because he leaned forward with one foot in front and one back and was able to peer over the edge. They didn’t see any safety harness and one of the supervisors remarked, "that guy could fall there." It was about a 15-foot drop to the ground.
Concerned with the safety of the employee, the supervisors stopped a building maintenance employee and asked him to find out who was on the roof and tell him not to go back up there. The employee didn’t know, so they found another worker and asked him if he could point out the person who had been on the roof. The worker pointed out Dyson. Based on Dyson’s clothing and build, the supervisor’s agreed it was in fact Dyson they had seen on the roof.
The supervisors talked to the maintenance superintendent and they decided to measure out where the six-foot mark from the edge of the roof was compared to where they saw Dyson. A week later, they re-enacted the scene with a contractor who went on the roof — properly tied to a safety line — and moved to different positions while the supervisors observed from the spot on the ground where they had observed Dyson. It was confirmed the spot where Dyson had been standing was closer than six feet from the edge.
Worker denied getting too close to edge
IOC’s investigation concluded that Dyson’s actions had a potential for significant injury or death. Dyson said he was aware of the zero tolerance policy and the requirement to wear tethers before getting too close to the edge of the roof, but denied getting too close to the edge and said the supervisors hadn’t identified him directly. He said he didn’t measure exactly how far from the edge he was, but he claimed he didn’t walk on a mat that was within six feet of the edge. Dyson ultimately estimated he was six to eight feet away from the mat. However, he had no explanation as to why two supervisors wouldn’t be truthful about what they saw. Dyson also said he had received no direction from his supervisor on whether a form had to be filled out for the assignment.
Another employee had been assigned to partner with Dyson to perform measurements of ladders on various buildings that day. He said Dyson went up the ladder ahead of him and onto the roof to take measurements, and he claimed he only lost visual contact with Dyson briefly when Dyson walked away from the top of the ladder.
The co-worker claimed Dyson couldn’t have gotten that close to the edge of the roof. The co-worker acknowledged neither of them were wearing safety harnesses, but said they didn’t need them because they weren’t doing anything near the edge. They were also aware of company policy that permits were necessary when working at heights, but they weren’t aware one was needed for the job of measuring ladders. The plan would be for them to be moving up and down without spending much actual time on the roof, said the co-worker.
The arbitrator found that there was no question the supervisors could have identified Dyson as the employee they saw on the roof. Though they didn’t know him, he was identifiable with the clothing his was wearing, his hard hat, his stature, and his bearing. Once Dyson was pointed out to them — by an employee who knew immediately who they were talking about — they knew immediately that he was the one on the roof. In addition, no other employees were assigned to roof work that day, so it could only have been Dyson, said the arbitrator.
No reason to doubt supervisors or investigation
The arbitrator also found IOC conducted a thorough investigation, including two re-enactments and measuring to make sure the spot where Dyson was seen was less than six feet from the edge. In addition, the pose the supervisors reported seeing Dyson take — one foot in front of the other and leaning over — only made sense if Dyson was close enough to the edge of the roof to see down and feel the need to stabilize himself.
The arbitrator found there was no reason for the supervisor to lie about seeing someone close to the edge of the roof and all evidence pointed to it being Dyson — including his own acknowledgement that it was he who was working on the roof that day. Taking into account Dyson’s short term of service and poor discipline record, the arbitrator found IOC had just cause to terminate Dyson’s employment.
"My considerations have found just cause to discipline (Dyson), and that the safety violation complained of is a major infraction which warrants a severe response of its own accord," said the arbitrator. "Since Mr. Dyson’s service is so short, and his discipline record is so chequered during his tenure, and he has already been suspended for a working at heights violation, he has no workplace bank account of any benefit to draw upon to mitigate his circumstances."
Jeffrey R. Smith is the editor of Canadian Safety Reporter, a sister publication of COS that looks at health and safety law.
This article originally appeared in the January 2016 issue of Canadian Safety Reporter.
© Copyright Canadian Occupational Safety, Thomson Reuters Canada Limited. All rights reserved.
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