Canadian Employment Law Today

4 Canadian HR Reporter, a Thomson Reuters business 2015 Worker flames out after slow response to emergency Employer didn't like delayed response by company firefighter with multiple instances of discipline over short period of employment BY JEFFREY R. SMITH A company firefighter's delay in responding to an emergency call was not in itself just cause for dismissal, but it was a culminating incident when combined with his dis- ciplinary record, an Ontario arbitrator has ruled. Gregory Freer was an operator techni- cian at a wastewater facility that was part of a petro-chemical plant in Sarnia, Ont., run by Lanxess. Lanxess maintained its own fire hall at its facilities and, be- cause of the company's knowledge and experience with chemicals and hydro- carbon fires, it provided first responder emergency fire, rescue and medical ser- vices to other companies nearby under a contract. Freer's duties included being a backup firefighter ready to respond to any calls. At all times, there was a fire captain and a backup firefighter to re- spond to any emergency. As a backup firefighter, Greer reported to the fire hall at the beginning of each shift to perform checks on the fire truck and equip- ment. He then parked the fire truck at the wastewater facility to be ready for use when a call came in. When a call came in, he was to stop his operator technician duties and immediately respond. Greer was hired in 2011 and in his first two years of service had two suspensions — one 12-hour shift for his conduct during firefighting training and four 12-hour shifts for being found asleep in a non-designated fatigue recovery room. Greer began an overnight shift on Feb. 7, 2013, by checking in at the fire hall and driv - ing the fire truck to the wastewater facility. It was a snowy night and Lanxess had to utilize its snow removal services at about 3 a.m. to deal with the road conditions on its property. Greer started his operator tech- nician duties and worked on a particular project for about four hours. Shortly after 4 a.m. on Feb. 8, the plant protection officer put out an emergency alert about a fire at Styrolution, a nearby company that had an emergency services contract with Lanxess. e alert involved a loud alarm sounding in the wastewater facility as well as a signal on a radio carried by Greer. Concerns over response time A few days after the fire, Styrolution raised a concern with Lanxess' chief of emergency service about the response time of the Lanxess firefighters. Lanxess investigated the incident, spoke to sev- eral employees, and the lead of waste op- erations drove the route Greer took that night to the fire, which was 1.67 km long. It took him four minutes and 30 sections, while the record of the call showed Greer acknowledged the call two minutes after it came in, was on his way four minutes after that, and arrived four minutes lat- er — a total of ten minutes after the call came in. In the audio recording of the call, once Greer acknowledged the alert two minutes after it came in, he asked for the details to be repeated. e fire captain responded within a minute to the call. Greer explained that after he answered the call, he went outside to clear snow off the windows and lights of the fire truck before proceeding with the fire captain on duty. He said the roads weren't plowed, so he drove slowly and stopped at all stop signs and red lights. He stated he believed he fol - lowed all the rules, did his job properly and handled the incident well. When asked what he was doing at the time the call came in, Greer explained he was sitting in a chair in the lab of the waste- water facility. When he heard the call, he said he walked out to the fire truck and cleared snow off it. e fire captain arrived and the two of them continued to clear snow before driving to Styrolution. He was asked whether he had kept the truck clear of snow over the course of the shift, but Greer said he "got complacent." Greer also explained he asked for the call to be repeated because he was flustered and wanted to clarify things. He said he could not hear everything because he had "tunnel vision" and was focused on getting to the fire truck. ough Lanxess had no written policy on fire emergency response times, it was a requirement for firefighters to respond to alerts immediately. Since Greer took about 90 seconds to respond to the call and then asked for it to be repeated, the company felt he could have acted more quickly. It was also considered odd because no-one on duty had asked for a call to be repeated before as they were usually "on the ball" and trained to respond immediately. e investigation also revealed that though it was snowing that night, the com - pany's snow removal service had been called into action and the roads had been sanded and salted. Another employee reported he had seen the fire truck going slower than was necessary with no traffic around. Company email used for communication with online poker site At the same time as this investigation, Lanxess was also investigating improper use of the company's electronic commu- nication system by several employees. e investigation revealed Greer sent and received personal emails from his work account, including an email from CASE IN POINT: JUST CAUSE CERTAIN jobs require a high level of responsibility and therefore a high level of expectation that the employee will perform the job well. If the job is not done well, there could be more likelihood of just cause for dismissal. This doesn't just apply to simple dismissal, but can also be a factor when looking at not just the misconduct itself, but the employee's history of misconduct. Sometimes, employees can be dismissed for cause even if their misconduct on its own wouldn't normally provide just cause for dismissal, if they have a history of similar misconduct that shows they don't seem to be getting the message. Previous discipline for misconduct on an employee's record can elevate a single instance to a culminating incident that, combined with the past, provides just cause for dismissal. And if an employee is in a position with a high level of expectation and responsibility, it may not take too many instances of misconduct lead to a culminating incident. BACKGROUND

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