Canadian Employment Law Today

August 30, 2017

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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Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2017 Cases and Trends Failure to heed warnings and discipline gets worker fired Worker argued dismissal was disproportionate discipline for not filling out required paperwork, but had a lengthy record of such failures BY JEFFREY R. SMITH A NOVA SCOTIA company has won an appeal overturning an order to reinstate a long-time worker it dismissed for repeated violations of company policies and procedures. Bruce Young began working for Michelin North America in November 1988 as a me- chanic/curing technician at the company's tire manufacturing plant in Waterville, N.S. As a curing technician, Young was respon- sible for press maintenance and supporting press operators — which involved respond- ing to issues as well as taking proactive mea- sures. Young was a team leader and was re- quired to sign off on paperwork for defec- tive, or 'non-conforming', tires — called CNC forms. Quality issues from manual tire inspections were also logged into a sec- ondary verification system. e paperwork from Young's curing department was used to provide evidence for regulatory agencies and external auditors that quality standards were being met. Michelin also codified a set of "cardi- nal safety rules" that were essential to the company's health and safety practices. e rules related to proper lockout/tag out pro- cedures, altering safety devices, confined spaces, mobile equipment operation, fall restraint, and hot work permits. Michelin made it clear to employees that violations of any of the cardinal safety rules "may result in immediate disciplinary action, up to and including termination." Michelin had a progressive disciplinary process that featured two written warnings, a final written warning, and suspension. e disciplinary policy also stated that the entire four steps may not be followed if an employee demonstrates "a general lack of commitment." If 12 months passed from the last instance of discipline and there was im- provement, copies of the disciplinary letters would be returned. Young was given verbal counselling on the importance of filling out CNC forms on Oct. 3, 2013. Verbal counselling was the first step of Michelin's discipline process. Young confirmed that he was trained in the proper completion of the forms. On three other occasions in 2013, Young had to be coached three times — once on the importance of locking out a press during a seal change and twice on the importance of filling out CNC forms. Suspension for cardinal safety rule violation A few months later, on Feb. 25, 2014, an- other team leader in the curing department noticed that there were no locks in the area of repair of a pneumatic cylinder and me- chanical assembly Young was repairing — a violation of the lockout/tag out rule. e team leader knew Young had removed a part for repair and there should have been an isolation lock in place. When Young re- turned, the team leader asked him if there was any lockout/tag out in place for the part removal and Young replied that there was not but there should be. Young and the team leader met with a hu- man resources representative and Young agreed he had violated the lockout/tag out rule, explaining that he had been in a hurry to get the machine working again. Michelin suspended Young for two shifts (24 hours) for the breach of a cardinal safety rule. e discipline letter stated that it was "a serious safety infraction and totally unacceptable" and if he didn't complete his responsibilities when he returned after his suspension, his employment would be terminated. e business unit leader for the curing de- partment told Young that he was on a pro- gressive discipline path and another serious incident could lead to termination. On March 16 and April 9, 2014, Young once again failed to complete CNC forms for defective tires. e business unit leader asked Young why this happened, and Young said he felt under pressure as a team lead. At Young's request, he was removed from his team leader position. At Young's annual performance review in March 2014, he was told he didn't perform consistently. A performance review plan was developed in which he needed to show "sub- stantial improvement" in several areas and there would be "zero tolerance" for CNC pa- perwork and lockout/tag out failures. is was followed by a 24-hour, two-shift sus- pension for the March 16 and April 9 CNC paperwork failures. e suspension was ac- companied by a "special final letter" saying it was Young's "last chance." Young signed the letter indicating he agreed with its terms. On Sept. 4, Young again failed to fill out CNC paperwork and also didn't complete a report that was used to inform the curing shop of any scrap tires. Young said he forgot, but management felt at this point it was dif- ficult to trust he would do his job properly if he couldn't fill out CNC forms consistently. Based on Young's record and the fact he was at the end point of the disciplinary process, Michelin terminated his employment effec- tive Sept. 12, 2014. Young filed a complaint with the Nova Scotia Director of Labour Standards be- cause he felt termination was a dispropor- tionate response. He argued his suspension was for violating lockout procedure and his written warnings were for CNC paperwork. When he was given a last chance, he thought it referred to safety violations and didn't be- lieve "CNC would get me fired." He said his 26 years of service were a mitigating factor and he was better able to handle stress, so he could reintegrate into the workplace and would fill out all paperwork properly. e director of labour standards ordered Michelin to reinstate Young and make him whole, but Michelin appealed to the prov- ince's labour board. e labour board found that "there was no doubt that (Young) was warned about his performance" and he violated a cardi- nal safety rule. It also found Young received warnings and coaching every time he slipped up and he should have been aware that con- tinuing to fail to meet expectations would put his job in jeopardy. e board also found that Young's per- formance appraisal in March 2014 clearly indicated there would be zero tolerance for failure to complete CNC paperwork or follow lockout procedures. Add to that fur- ther coaching and the "special final letter," Young should have been under no misun- derstanding where he stood in the progres- sive disciplinary process, particularly since that process had been in place for some time and had been imposed on Young in the past, said the board. e board concluded that Young was treated fairly in Michelin's progressive disci- plinary process and was given plenty of op- portunity to improve. e fact that he failed to do so and repeated his infractions justi- fied termination as a response for Michelin. e board overturned the order to reinstate Young and upheld his termination. For more information see: • Young and Michelin North America (Can- ada) Inc., Re, 2017 CarswellNS 967 (N.S. Lab. Bd.).

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