Canadian Employment Law Today

Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends Suspension set aside after confusion over safety rule Worker who drove himself to get medical attention after injury claimed he was unaware of rule prohibiting it BY JEFFREY R. SMITH AN ALBERTA arbitrator has set aside an employee's suspension for violating a safety rule by driving himself to receive medical treatment after a workplace injury. Neil omas worked for Russel Metals, a distributor and processor of steel products op- erating facilities in Alberta, as a laser operator. Hired in December 1999, his duties included using a laser to cut steel plates in the plant. omas, like all Russel Metals employees, re- ceived first-hand training and were reminded of the company's health and safety loss control manual at regular tool box meetings. Employees also had a review of the safety manual and a safety orientation checklist as part of their orientation. omas had signed his checklist in December 2001, and had one disciplinary notice for a safety violation on his record. In August 2013, omas attended a tool box meeting with employees and the plant manager. e plant manager discussed fork- lift safety and a specific section — section 12 — of the Russel Metals health and safety loss control manual the covered emergency preparedness. e last paragraph of the sec- tion stipulated that when an injured person needed to be transported for medical care, two people needed to go with the person — one to drive and one to provide first aid, if necessary. e section stated that "under no circumstances is that worker allowed to drive themselves to receive medical treatment." is rule was in line with Alberta's Occu- pational Health and Safety Code 2009 Or- der, which stated that "if a worker is acutely ill or injured, or needs to be accompanied during transport to a health care facility, an employer must ensure that the worker is ac- companied by at least one first aider in ad- dition to the operator of the transportation. e section also referred to a specific medi- cal centre nearby that instructed workers to proceed there if "minor medical assistance is required." According to the general manager, there was a discussion about this rule so everyone understood, though omas and other em- ployees later testified it was not specifically mentioned that an injured worker could not drive himself. At the end of the meeting, attendees signed their initials next to their names on the meeting minutes, including omas. After the meeting, the material that was reviewed in the meeting was posted on the company safety board. Copies were offered to employees, but none were accepted, though employees could request copies at any time. On Oct. 6, 2013, omas was involved in a workplace incident in which one of his fingers was crushed. Another employee performed first aid on him, disinfecting and wrapping the injured finger. e co-worker offered omas a ride to the medicentre and omas agreed. However, after the ini- tial shock had passed, he decided the injury wasn't serious and told the co-worker he was going to have a cigarette. Worker left on his own omas told another co-worker about the incident and she also offered him a ride. He didn't answer and, while the two other em- ployees were wrapping and securing a load of product, he left without saying anything. He felt he needed to get the finger treated and felt fine to drive himself. After his finger was treated, omas re- turned to work and told the plant manager about the incident. He said he went for med- ical attention, received "a few stitches" and he was sore but was otherwise fine. ey agreed to talk about it the next day. omas worked as scheduled the next day and met with the plant manager. He ad- mitted he had "screwed up" and could have done things differently to avoid the incident. When it became clear omas had driven himself to receive medical attention, the plant manager was concerned about the po- tential hazard if omas had gone into shock while driving himself. Russel Metals determined omas had made a serious violation of its health and safety policy. Since omas had a prior safety violation on his record, the company suspended omas for one day. omas grieved the suspension, arguing he didn't specifically refuse a ride and he hadn't been informed of the specific rule against driving oneself after an incident. e arbitrator found Russel Metals had not made the rule about transportation for outside medical care fully clear. e section of the safety manual covering the topic was discussed at the August 2013 tool box meet- ing and other meetings, but the arbitrator had doubt the specific paragraph about trans- portation was covered, since omas said he wasn't aware of it. e co-workers who of- fered him a ride also did it out of concern and both said they weren't aware of the rule. e arbitrator also found omas didn't refuse a ride; rather he accepted one from his co-workers but then left on his own when they were doing something else. In addition, omas' conversation with the plant man- ager and the fact he reported the incident immediately after returning from treatment further showed that omas wasn't aware of the rule, said the arbitrator. "It… seems unlikely that (omas) would drive himself for medical care if he knew the rule," said the arbitrator. "He had nothing to gain by knowingly violating the rule." e arbitrator determined omas didn't willfully violate the safety rule re- garding transportation for medical treat- ment as the rule wasn't clear and un- equivocal nor was it brought fully to his attention. Russel Metals was ordered to remove the suspension from omas' re- cord and compensate him for lost pay. For more information see: • Russel Metals Inc. and USW, Local 1-207 (omas), Re, 2015 CarswellAlta 1333 (Alta. Arb.). ABOUT THE AUTHOR JEFFREY R. SMITH Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.r.smith@thomsonreuters.com, or visit www. employmentlawtoday.com for more information.

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