Canadian Employment Law Today

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Read the facts and see if the judge agrees YOU MAKE THE CALL 8 No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, 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. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Worker buckles under pressure to buckle up THIS INSTALMENT of You Make the Call involves a worker who was accused of violating company safety policy by not wearing a seat belt. e worker was employed with Montreal- based aluminum manufacturer Rio Tinto Alcan at a facility in British Columbia. He was hired in 1981 and was active in various union positions during his tenure, as well as the B.C. facility's occupational health and environment committee and chair of the in- ternal union safety council. His roles made him a self-described "safety conscious guy" and he had a reputation of being hard on safety issues. Rio Tinto Alcan had many safety rules for its facilities and it issued a recommended discipline guide that outlined types of mis- conduct and the discipline that might result. e guide wasn't agreed to by the union, and was considered a list of minimum responses to misconduct. e worker had no instances of discipline on his record. One of the company's fundamental safety rules was that all employees must wear seat belts when travelling in company vehicles, with no exceptions. e company issued defensive driving rules to employees that explained why seat belts were necessary and stipulated that any violation of its traffi c rules would be enforced by a written warn- ing on a fi rst off ence, a one- to three-day suspension for a second off ence, a suspen- sion or discharge on the third off ence, and a discharge on the fourth off ence. In addition, knowingly giving false evidence or failing to provide evidence to an incident investiga- tion was punishable by a written warning or suspension on a fi rst off ence, followed by a mandatory suspension and discharge for second and third off ences, respectively. On Oct. 27, 2013, the worker fi nished his primary duties and decided to check studs that were used up in the aluminum manu- facturing process and needed to be moni- tored. He used a golf-cart-like machine to move along the pots and check them. e ve- hicle was open on the sides with a large rear window and mirror to help observe things, along with a fl ashing light to make it more visible. e vehicle also had a retractable seat belt system released by a red button on the lower left side of the driver. A reduction co-ordinator was walking through the building that day and saw the ve- hicle moving slowly from one pot to another. As he walked down the aisle, the vehicle stopped and started to reverse towards him on an angle. He saw the worker looking at the pots and when the vehicle pulled even with him, he saw he wasn't wearing his seat belt. e co-ordinator leaned into the cab and saw the centre part of the belt was tucked be- hind the worker's back, so he reached behind and pulled it out, asking if it was long enough to reach around him and to please buckle it up. e worker replied that he would do it just for him, to which the co-ordinator said "we don't need things to get any worse than they are already" and the worker acknowl- edged that it was a critical rule. e co-ordinator reported the incident to the worker's supervisor, who began an inves- tigation and met with the worker. e worker claimed he had been wearing his seat belt un- til he noticed something on a pot that needed attention, so he undid the seat belt and backed up. He denied the co-ordinator grabbed the belt, as he was on the other side of the vehicle. He admitted the co-ordinator told him to do the belt up and it was clear he was concerned, but he didn't tell him he had been wearing it because the co-ordinator didn't stick around. He claimed there was no way the co-ordina- tor could have seen if he was wearing the seat belt before he backed up. e supervisor concluded the worker had not been wearing his seat belt and suspend- ed him for three days for violating a funda- mental safety rule. YOU MAKE THE CALL Did the employer have grounds for suspending the worker? OR Was the suspension excessive? IF YOU SAID the three-day suspension was excessive, you're right. e arbitrator found the evidence pointed to the fact the co-ordinator didn't actually see the worker driving without his seat belt on. e worker claimed the co-ordinator was too far away to see him in the vehicle while he was driv- ing, and the co-ordinator himself said he only could see once the worker reversed and pulled even with him. However, the arbitrator found it was sig- nifi cant that when the co-ordinator called attention to the fact he wasn't wearing a seat belt, the worker didn't say he had been wearing it and had just undid it. Rather, the worker acknowledged the warning and the rules. is was an "implicit admission that (the seat belt) had not been done up the full time when the buggy had been in mo- tion," said the arbitrator. Even if the seat belt was undone for the short time the worker reversed up to the co-ordinator, this was a "technical breach of the traffi c rules." ough the worker likely had his seat belt undone for a short period of time and denied it in the investigation, the arbitrator felt his failure to come clean wasn't intended to oppose the rules. e worker was a long- time employee with a good record and a reputation for being safety conscious, and it was likely he was embarrassed by his slip up, which was only a small one. A written warning would have been suffi cient for the misconduct, but his failure to admit it war- ranted slightly greater discipline, said the arbitrator. e arbitrator reduced the pen- alty to a one-day suspension. See Rio Tinto Alcan Inc. and Unifor, Local 2301 (Madsen), Re, 2015 CarswellBC 226 (B.C. Arb.).

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