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Arbitrator upholds termination over safety breaches

|Written By Julius Melnitzer

An Ontario arbitrator’s decision to uphold the termination of a long-serving employee with 37 years of service signals a growing recognition of the dilemma facing employers at risk of serious consequences for failing to meet their statutory obligations under occupational health and safety legislation.

‘Employers who invest in health and safety will ultimately prosper but to do so they have to walk the talk and impose progressive discipline leading to termination if necessary,’ says Elizabeth Mills.

“The case is significant because it recognizes the growing importance of the regulatory regime around health and safety, including the underlying policy considerations,” says Kevin Coon of Baker & McKenzie LLP who represented the employer, lead recycling company Tonolli Canada Ltd.

“This has been and remains a dilemma for many employers as they face significant penalties for OHSA [Occupational Health and Safety Act] violations, yet adjudicators regularly will not enforce the discipline for H&S that employers set out.”

The employee, Frank Marsiglia, aged 58 and with 37 years’ seniority, was a member of the United Steelworkers Local 9042. He had been subject to extensive discipline related to health and safety that included warnings and suspensions prior to two culminating incidents on consecutive days. The culminating incidents involved Marsiglia’s failure to wear mandatory safety equipment on the job and subsequent insubordination.

Although the griever expressed remorse, his evidence suggested he didn’t fully accept the company’s policies as appropriate and necessary.

“It takes an appropriate timely acknowledgment of the misconduct and an apology which fully accepts responsibility [and] demonstrates true remorse to raise the mitigation value of lengthy seniority to a level sufficient to induce an arbitrator to seriously consider reinstating a discharged griever guilty of serious or repeated health and safety misconduct,” wrote arbitrator George Surdykowski.

In the arbitrator’s opinion, the griever hadn’t demonstrated that type of remorse. Rather, he found the griever would likely reoffend.

“The evidence shows that the griever has previously promised and failed to do better,” Surdykowski noted.

“The griever has had many chances to demonstrate to the company that he can continue to be a safe and useful employee. He failed to so demonstrate to one of the most patient employers I have seen in my more than 25 years as a labour relations adjudicator. Nor has the griever demonstrated any rehabilitation potential to me. I have no confidence that if reinstated the griever would return to the workplace as a productive safety-conscious employee respectful of the company’s reasonable health and safety expectations and an employee’s responsibilities and obligations to other employees and the company in that respect.”

The only significant mitigating factor, in the arbitrator’s view, was the griever’s 37 years of service.

“In the circumstances of this case, I do not consider [the griever’s seniority] just and reasonable or otherwise sufficient to induce me to exercise my discretion to substitute a lesser penalty for discharge and reinstate him as an employee of the company and I decline to do so,” the arbitrator concluded.

According to Coon, courts and arbitrators adjudicating disciplinary cases have been slow to recognize the significance of the difficult occupational health and safety regime Ontario employers operate in. He cites a recent case in which the Ontario Court of Appeal overturned a termination for health and safety violations.

“What’s clear on a reading of that case is that the court applied basic employment law principles without giving sufficient weight to the public policy and employer’s liability related to health and safety legislation,” he says.

Jeffrey Goodman of management-side boutique Hicks Morley Hamilton Stewart Storie LLP agrees that Tonolli Canada Ltd. v. United Steelworkers and its Local 9042 is a step in the right direction.

“This case is important because it reinforces the principle that there are certain types of misconduct, such as health and safety infractions, that can overwhelm even significant mitigating factors, such as age and long service,” he says.

“This is perhaps most true in health and safety cases where the employee can by their misconduct place not only themselves in danger but their fellow employees as well.”

Elizabeth Mills, president and chief executive officer of Workplace Safety & Prevention Services, believes the due diligence required by statute goes hand in hand with appropriate disciplinary action.

“Employers who invest in health and safety will ultimately prosper but to do so they have to walk the talk and impose progressive discipline leading to termination if necessary,” she says.

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