By Adrian Miedema
An employer has lost a wrongful dismissal case after a court found that its safety rules, which it alleged the employee violated, were unclear and not clearly-communicated.
The employee worked at a solid waste facility in the Yukon. The employer fired the employee and attempted to prove “just cause” on the basis of absenteeism, poor working relationships, use of company cell phone for personal calls, and safety violations.
With respect to safety, the employer claimed that the employee did not like to wear her safety vest and steel-toed boots, despite it being a job requirement, and that the employee was constantly reminded to wear her hard hat. The employee acknowledged that she knew that if she did not comply with the safety rules, she would be fired; however, she said that the rules were unclear and she had asked that they be written down.
The court decided that the hard hat requirement was not clearly set out by the employer, and was not included in the employer’s Employee Guidelines document. The court concluded:
“I find that the society did not take the necessary steps to ensure that there was a clear and unequivocal set of rules, guidelines and/or policies that made it clear what equipment was to be worn at what locations and at what times. I find that, to the extent that there was some verbal direction provided, this direction was not entirely clear and cannot be relied upon as establishing a standard that Ms. Goncharova can then be viewed as having breached. The power to establish clear and unequivocal standards and requirements lay with the Society. It simply was not done.”
The employer also failed to prove that the absenteeism, relationship issues and cell phone use justified the dismissal.
This case illustrates the importance of clear communication of safety rules where the employer wishes to discipline or dismiss the employee for a violation of those rules.
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.