Every once in a while, however, when pondering human behaviour and safety in the workplace, we have to take a step back and ask ourselves, just what were these workers thinking? And more seriously, what should the employment consequences be for this type of workplace behaviour?
With the caveat that these writers acknowledge safety is a serious matter, and some of these incidents resulted in injuries to workers involved, we start with a selection of real decided Canadian disciplinary cases that can only be characterized as unexpected, bizarre, even “wacky” behaviour.
A mechanic picks up an air gun nailer and checks it in the air. When it does not fire, he holds it to the abdomen of a co-worker. It discharges a steel nail into the co-worker’s stomach. The offending worker convinces his co-worker not to go to the hospital and not to report the incident to management. The consequence: the arbitrator recognized the employer’s legal obligation to provide a safe and secure workplace for employees, this was the worker’s second safety infraction, and a discharge of the mechanic was upheld at arbitration.
A 30-year employee in a plant with highly pressurized and flammable gases sets off firecrackers in this safety sensitive plant twice, as a joke. He is a member of the plant’s joint health and safety committee, and has taken numerous safety courses. The consequence: a discharge of this employee was upheld at arbitration, despite the mitigating factors of very long service with the employer and a clean record. These factors did not outweigh the seriousness of the offence.
A new worker decides to create several “dry ice bombs.” Pieces of dry ice are placed in 500ml plastic bottles with water, leading to a chemical reaction, which causes the bottle to explode. One of the “bombs” explodes near a co-worker who suffers temporary deafness and ringing in his ears. The consequence: The arbitrator found that this relatively new worker (his tenure was six months) intentionally threw these dry-ice bombs amongst his co-workers, thereby carelessly and negligently putting others at risk. However, discharge was not appropriate in the circumstances. A discharge was overturned and instead the worker served a one-year suspension.
A worker takes a bet and for the sum of $100 staples his genital area to a 4x4 wooden plank in the workplace lunchroom. Through the wonders of modern technology this is recorded. A co-worker posts this on the Internet. The consequence: The worker is discharged upon discovery by the employer. The Ontario Labour Relations Board upholds the discharge. The board states in discussing the movie, “[i]f the…employees want to emulate the principals of Jackass by self-abuse, they may be free to do so when they are not on the [workplace] premises and cannot be identified as being associated with the [employer].
Human resources and health and safety professionals discovering each of these matters were undoubtedly concerned to learn of this workplace behaviour. It is clear from the above decisions that tribunals are willing to uphold severe discipline and even discharge when the safety infraction and circumstances warrant.
Discipline for safety
The responsibility of employers and supervisors to provide a safe work environment has long been recognized. Increasingly, disciplinary responses to safety infractions, up to and including termination, are recognized as appropriate for behaviour that negatively affects workers’ and others’ safety in the workplace, or for violation of a fundamental safety rule.
Some employers are surprised to learn that arbitrators have upheld discipline for safety infractions in a variety of situations. Certain preconditions to ensuring that the disciplinary response is appropriate for the circumstances — and fair to the worker — are necessary for a disciplinary response to be upheld.
Arbitrators recognize the importance of safety in the workplace, and that discipline is an appropriate, and expected, method of enforcing an employer’s safe work procedures. In dealing with inappropriate workplace behaviour, employers that make their expectations clear through training and consistent application of discipline for safety can potentially discipline, and even discharge an employee for a first-time safety violation.
Integrating discipline into OHS program
Arbitrators and decision-makers have established a number of principles necessary for upholding discipline for safety infractions. Front-line supervisors must be aware of these principles, the most important of which are: knowledge of the rule or procedure, consistency and progressive discipline.
Employees must have knowledge of the rule or procedure being enforced. This can be accomplished either through training, posting of rules or safety reminders such as crew meetings or safety meetings. Employers and supervisors must document safety training received by employees, whether it is formal training or more informal safety talks. One of the most frequent reasons for overruling discipline at arbitration is the employer’s failure to prove the employee knew of or clearly understood the rule or procedure.
Consistency in enforcement of workplace rules and in the treatment of all employees is a fundamental principle of fairness, and is therefore fundamental to what constitutes a fair and just penalty for a safety infraction. Without consistency, employers are likely to find their discipline overturned.
Imposing an appropriate penalty is a final important consideration for employers and supervisors who are satisfied, after assessing the evidence and all of the circumstances of a particular incident, that a safety infraction has occurred. The appropriate penalty will be viewed from the perspective of progressive discipline. Discipline is to be corrective, and must therefore be imposed progressively, with more severe penalties following subsequent infractions.
Safety related discipline does not, however, have to begin with a written or verbal warning. Where an incident has resulted, or could have resulted, in serious injury, arbitrators have found that employers are justified in imposing severe discipline for a one-time violation.
Decision makers must review a range of mitigating factors, including: whether the worker is of long service; whether the individual has a prior spotless disciplinary record; whether they have immediately apologized and committed to change their behaviour; whether the matter involved in the incident created low risk of a serious injury. In such instances, the disciplinary response will likely be progressive — starting with verbal and written warnings, and then suspensions.
For a worker with short service, prior discipline, little indication of a desire to change behaviour or little understanding that their behaviour created a risk, and/or an incident creating high risk of injury to the worker and others, the disciplinary response may be significant, including discharge.
Discipline for safety is a crucial part of any health and safety program. It is an indispensable component of an effective due diligence defence. By integrating discipline into your health and safety program, management and supervisors will have the tools and knowledge to deal with the full range of workplace human behaviour to enforce safe work procedures, and ensure a safe workplace for all.
Cheryl A. Edwards is a former Ontario Ministry of Labour OHS prosecutor and now leads Heenan Blaikie's national OHS and workers' compensation practice. She can be reached at firstname.lastname@example.org or (416) 360-2897.
Co-authored by Samantha Seabrook. Samantha is an associate in Heenan Blaikie LLP’s Labour and Employment Law group and a member of the firm’s OHS and Workers’ Compensation Practice Group. Samantha may be contacted by e-mail at email@example.com or at (416) 777-4176.
Cheryl Edwards is a former occupational health and safety prosecutor with almost 30 years of experience. She can be reached at (647) 777-8283 or firstname.lastname@example.org
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