Canadian Employment Law Today

March 11, 2020

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL ©2020 HAB Press Limited, a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under license by HAB Press Limited. CANADIAN EMPLOYMENT LAW TODAY is a trademark of HAB Press Limited. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photo - copying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 70318 4911 RT0001 Emplo y ment Law Today Canadian Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE 20 Duncan St. 3rd Floor, Toronto, ON M5H 3G8 President: Tim Duce Editor: Jeffrey R. Smith Email: Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: Phone: (416) 644-8740 x 236 Marketing Co-ordinator: Keith Fulford Email: Phone: (416) 649-9585 HAB Press Ltd. Long-time worker narrowly misses serious accident THIS EDITION of You Make the Call features an Ontario worker who lost his job after a safety violation. The worker was a forklift driver in the ship - ping department of Invista, a manufacturer of industrial nylon in Kingston, Ont. The Invista plant contains hazardous chemicals, steam pipes and high-speed machines all involved in the manufacture of nylon. Because of this, the company is focused on workplace safety and makes it a priority for its employees. As a forklift driver, the worker did his job with limited supervision and received exten - sive training in safe forklift operation over his six years with Invista. This included a list of safety precautions for forklift drivers loading product and a company safety manual. The worker had a clean disciplinary record for 19 years with Invista. The safety procedures for loading product included taking the keys from the truck driver, locking the trailer to the loading dock, chock - ing the wheels of the trailer and lowering the landing gear. There was also a pre-load check sheet to be completed and a system where a green light facing into the building is used to signify that it was safe for the forklift driver to enter the truck. On April 5, 2019, the worker was loading product onto a trailer with his forklift. The trail - er wasn't backed in straight, so the dock lock mechanism couldn't be used to lock the trailer to the loading dock. The worker asked the truck driver to lower the landing gear, but the driver neglected to do so. The worker didn't check that the landing gear had been lowered, so it wasn't lowered when he started loading the trailer with the help of a co-worker. The worker also didn't notice that the red light was on. After about 20 minutes of loading, the work - er was driving the forklift straight into the trailer when the driver drove it away from the loading dock. The worker wasn't able to stop the forklift and it fell from the loading door. Neither the worker nor anyone else was hurt in the incident. The supervisor was concerned that the work - er had worked for 20 minutes without noticing the warning light and didn't ensure the proper precautions — the dock lock, landing gear, chocking the wheels or taking the driver's keys — were in place. Although nobody was hurt, there easily could have been serious injuries. The worker acknowledged that he didn't comply with the safety protocols and said it was because he was under "emotional distress" stemming from his father passing away six months earlier. He explained he didn't realize it at the time but it had been on his mind, saying he had always followed safety protocols before and would comply going forward. After an investigation, Invista determined that the safety violation was serious because it had a dangerous workplace. It decided to ter - minate the worker on April 18 to protect the safety of its workplace and reinforce its priority on safety to other employees. Emplo y ment Law Today Canadian YOU MAKE THE CALL Was termination too excessive? OR Was the safety violation sufficient to warrant termination? IF YOU SAID termination was excessive, you're right. The arbitrator acknowledged that Invista created a work environment with a strong em- phasis on safety and its disciplinary responses to safety breaches were an important part of maintaining this culture. The worker placed himself and others in danger of a serious acci- dent when he failed to follow safety protocols of which he was aware. This was definitely de- serving of discipline, said the arbitrator. However, the arbitrator found that several factors mitigated the worker's misconduct: He had a long service record with no prior disci- pline, he acknowledged the seriousness of his misconduct and he was genuinely remorseful. The arbitrator found that the worker's claim that he was distracted due to personal stress was credible and the safety violations weren't wilful or deliberate. "I accept that the [worker's] emotional state and his concern about his attendance may partly explain his lack of attention to safety on the day in question but those are not, and he did not present them, as an excuse," said the arbitrator. "He is aware that his conduct was wrong and is determined not to repeat it." The arbitrator determined that there were enough mitigating factors that supported the worker's "rehabilitative potential to adhere to all safety rules." Invista was ordered to reinstate him without any loss of seniority but no back pay for the seven months since his termination to serve as discipline for his misconduct. For more information, see: • Invista (Canada) Company, Kingston site and Kingston Independent Nylon Workers Union, Re (Nov. 8, 2019), Marilyn Silverman — Arb. (Ont. Arb.). The worker proceeded for 20 minutes without noticing a warning light.

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