By Adrian Miedema
A labour arbitrator has ordered an employer to return an employee to his loader operator position despite the employer’s objection that the employee had caused accidents.
The employee, who had almost 40 years of service including 15 as a loader operator, had been involved in eight incidents in which damage to the employer’s property occurred. His incident rate of 1.2 per cent was the highest amongst all of its yard loader operators. After the eighth incident, the employer told him that he was disqualified from the loader operator position and was being transferred to the debarker position. The union grieved.
The arbitrator overturned the transfer. She noted that the employer’s evidence was that the employee had been “involved” in the eight incidents. The most recent warning was five years before the incident, and only warned him to be more aware of the “whereabouts” of other vehicles, and two years earlier that damage to the employer’s property was not “acceptable.” At no time was he warned or put on notice that he was viewed as a safety risk and that his employment as a loader operator was in jeopardy.
The arbitrator also noted the absence of evidence that employer provided the employee with training of any sort in an attempt to address performance concerns or assess ability to work safely. The evidence did not support the employer’s conclusion, drawn from the record of incidents, that the employee was no longer able to work safely in the yard loader operator position.
The arbitrator stated that she did not minimize the employer’s “very significant obligations to ensure that the workplace is safe, and to respond to safety issues.” Based on the absence of warnings or training to address the safety concerns, however, she ordered the employer to reinstate the employee to the yard loader operator position.
Adrian Miedema is a partner in the Toronto Employment Group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts. For more information, visit www.dentons.com or www.occupationalhealthandsafetylaw.com.