Canadian HR Reporter

CANADIAN HR REPORTER JANUARY 2020 NEWS 11 B.C. lumber company cuts 5-year forklift operator after safety infractions Despite personal stresses, worker fired after being caught breaking two rules at same time BY JEFFREY R. SMITH W orkplace safety rules are in place for a rea- son, and an employee who breaks them multiple times can be too much of a risk for the employer to keep on the job — especially if the employee is caught breaking more than one rule at the same time. at was evidence in a recent arbitration involving Canadian Forest Products (Canfor) — a lumber and pulp and paper pro- ducer — that hired a worker in June 2013 to be a forklift operator at its facility in Radium, B.C. e job safety analysis for the position required: personal protec- tion equipment (PPE): steel-toed boots, a hard hart, high-visibility vest, seatbelt, eye protection and leather gloves. The steel-toed boots had to be worn at all times and the seatbelt was required when the forklift was in motion. e hard hat, vest and eye protection were only required when the worker was outside the forklift, while the leather gloves were to be worn when handling materials. The worker was disciplined multiple times for safety issues, including: • making sporadic pre-trip in- spections of his forklift and not wearing a seatbelt; • failure to wear safety glasses out- side the forklift cab; • failure to rectify an improperly placed "jag of re-sort" after being told it was a safety hazard. He was also disciplined for leav- ing work early, taking equipment from the workplace, disrespectful behaviour and tardiness. In total, between August 2016 and Febru- ary 2018, the worker received a verbal warning, a written warning and four suspensions. On Sept. 24, 2017, the worker's brother died suddenly and Canfor granted the worker a leave of ab- sence. Soon after the worker re- turned to work — less than three weeks after the death of his brother — the worker's mother suffered a severe stroke, so Canfor gave him another short leave of absence. Caught in two safety violations On Nov. 30, the worker was late for work. He was suspended for five days, but Canfor was con- cerned that he had been "spiral- ling down for the past six months" and confirmed with the union that the worker was dealing with per- sonal issues that had affected his work. e company referred him to the employee and family assis- tance plan and the worker con- sulted a counsellor by telephone, but he said he didn't find it helpful. Several months later, on Aug. 22, 2018, the worker arrived at work, put on his safety boots and con- ducted a pre-trip inspection of the forklift. He then drove the forklift to the area where the chains were located and saw three co-workers he hadn't seen often. He parked his forklift, jumped out without putting on his PPE, sat down on a wooden pile and lit a cigarette. One of the co-workers remind- ed the worker to put on his PPE — all three were wearing theirs — but the worker replied, "What are they going to do, fire me?" A few minutes later, a supervi- sor saw the worker and threw up her hands at him. She approached the man as he put out his cigarette and asked him what he was doing, to which the worker replied, "You caught me red-handed." He apol- ogized and admitted he shouldn't have been smoking. The supervisor pointed out that the worker wasn't wear- ing his safety gear, so the worker went to his forklift and put on his high-visibility vest and hard hat. e supervisor told him to go to the office and wait for her, but the worker asked if she could give him a reprimand and let him go back to work. He also said other employees smoked in that area, which surprised the supervisor. Back in the office, the worker apologized again and said he had made "a stupid mistake and was not thinking." He was sent home pending an investigation. As he left, the worker climbed over bar- ricades and followed a worn path to the parking lot instead of fol- lowing an exit path designated by Canfor in a company-wide safety alert that had been posted in the office where the worker frequent- ly tied up his safety boots. Safety investigation e next day, Canfor conducted an investigative interview with the worker. e worker acknowl- edged that the supervisor had caught him smoking in an undes- ignated area while not wearing his PPE and said he wasn't him- self and "it was a stupid thing to do." He also said he thought his co-worker was joking when he reminded him to put on his PPE. When asked why he would get out of his forklift without his PPE and light a cigarette when a state of emergency had been is- sued in B.C. due to wildfires, the worker said it wasn't a big deal. When management brought up the fact that he had climbed over barricades to get to the parking lot, the worker claimed he was unaware that it wasn't allowed — he had seen other employees leave the workplace by going over the barricades. e worker pointed to the fact he had not been disciplined for the past six months after his pre- vious incidents — but it later came to light that he had been smoking in non-designated areas about once per week for several years. e worker was asked if there was anything going on at home and the worker replied that "things were better than they had been for a long time." Canfor felt that such safety vio- lations were serious, even if there was no physical injury or harm. On Aug. 24, the company termi- nated the worker's employment. e termination letter outlined several safety violations as some of the reasons for termination in addition to the worker's past dis- cipline for safety infractions: • smoking outside of a designated smoking area • not wearing PPE in a work area requiring it • departing the workplace by climbing over safety barriers • continuing to "disobey site poli- cies and procedures that you have been instructed on." e union grieved the termina- tion, arguing that it was excessive discipline as nobody was placed in danger and the worker "was not himself " due to the personal trag- edies in the fall of 2017 and the approaching anniversary of his brother's death when the final in- cident took place. e union also pointed to other Canfor employ- ees who had been caught violating safety rules but had not received discipline as serious as that given to the worker. Arbitrator notes disciplinary history e arbitrator noted that, in just more than five years of service, the worker had several instances of discipline, including multiple safety infractions. In addition, several of the incidents happened before the worker's personal trag- edies in 2017. e arbitrator found that Can- for followed a progressive disci- pline approach with the work- er's misconduct. It started with verbal and written warnings for safety infractions such as failing to wear PPE or performing pre- trip inspections of his forklift and eventually issued suspensions — a longer one for each progressive instance of misconduct. In addition, although the work- er had achieved a six-month pe- riod without discipline, it wasn't an indication of improvement as the worker had continued to break safety rules by smoking in non-designated areas, even when he should have known his job was in jeopardy by that point. "The six-month break in his disciplinary history occurred not because he was adhering to the safety rule but because he was not caught," said the arbitrator. e past discipline also made it clear that the Aug. 22, 2018 infrac- tions weren't isolated incidents. As for the union's claim that the rules weren't consistently en- forced and other employees had received less discipline for similar safety infractions, the arbitrator pointed out that Canfor could exercise discretion in some cases. e other cases involved work- ers with less discipline on their records and often in less serious circumstances, and they did not commit "two safety infractions concurrently." "It was reasonable for Canfor to treat the [worker's] Aug. 22, 2018 acts of smoking in a non-desig- nated area and failing to wear PPE differently from similar in- fractions by other employees with different service, who did not have the [worker's] disciplinary record and who were not warned repeat- edly that their job was in jeopardy if they did not take corrective ac- tions," said the arbitrator. e arbitrator also didn't ac- cept the argument that the work- er's personal stresses affected his decision-making. Although the worker may have been stressed and not himself, when he chose to smoke on Aug. 22, 2018, it was "a social and supportive setting not a stressful one" with three co- workers chatting. ere were also no indications the worker wasn't himself that day — he had come to work, put on his PPE, checked his work area and updated another employee on the job at hand when he was sent home. In addition, neither the smok- ing nor the failure to wear PPE were momentary aberrations, as the worker had been guilty of both infractions multiple times previ- ously. In that instance, the worker was even reminded to put on his PPE by a co-worker but didn't do so until a supervisor approached — "purposeful behaviour" that was "inconsistent with a momen- tary aberration or emotional im- pulse," said the arbitrator. However, the worker's climbing over the barricades wasn't worthy of discipline as his claim that he wasn't aware it was banned was reasonable and no employees had been disciplined for it, said the ar- bitrator. However, the other safety infractions demonstrated a pat- tern showing a disregard for safety that couldn't be ignored, and the worker's apology during the in- vestigation was too late given his disciplinary history and the seri- ousness of committing two safety infractions concurrently. It was unlikely the worker would change his workplace be- haviour and appreciate the im- portance of safe work practices, said the arbitrator in dismissing the grievance and upholding the worker's termination. For more information, see: • Canadian Forest Products Ltd. And United Steelworkers, USW Local 1-405, Re (Aug. 23, 2019), Jessica A. Gregory — arbitrator (B.C. Arb.). Credit: TFoxFoto (shutterstock) "e six-month break in his disciplinary record occurred not because he was adhering to the safety rule but because he was not caught."

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