Misconduct ‘was sufficiently serious that termination was actually a viable consideration.’
Dec 05, 2022
“Anytime that you have [a serious accident or near-miss], the fundamental question is, was this a one-off accident – typically, labour law does not consider accidents to be culpable behavior – was this culpable behavior of such seriousness that one incident would merit termination?”
These are the questions that must be examined in the event of a serious safety breach in a high-risk workplace – and termination may not always be the solution, says Michael Penner, a labour lawyer at Kent Employment Law in Victoria.
Those questions were addressed after a British Columbia worker who was terminated for narrowly missing pedestrians with a cement truck was reinstated by an arbitrator.
Ocean Concrete operates a concrete plant on Granville Island in Vancouver. The plant is an industrial operation, but it is located in an area with restaurants, shops, and tourist attractions with heavy vehicle and foot traffic. As a result, safety is a priority for the company.
The worker joined Ocean Concrete in May 2016 as a truck driver. He was experienced in driving large, heavy vehicles and received a significant amount of training. His disciplinary record involved one verbal warning for not wearing a mask during the COVID-19 pandemic and a violation of the respect-in-the-workplace policy.
On March 17, 2022, the worker was returning a cement mixer truck to the plant. His truck needed a “regeneration” reset and he needed to use the washroom, so he was in a hurry.
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Rolled through stop sign
At a stop sign near the plant entrance, the worker didn’t make a complete stop. Two families were walking on the sidewalk and, as the worker approached, he honked the horn twice as per normal practice. However, the families continued walking and didn’t appear to notice the truck.
The worker drove the truck slowly though the entrance without applying the brakes and one of the adults grabbed two children out of the way. A nine-year-old girl didn’t notice the truck until had to avoid a collision at the last minute. The worker, who was sitting in the cabin nearly seven feet off the ground, didn’t see the girl.
As the worker parked his truck, two witnesses entered the gate. When he told them that they weren’t allowed to be on plant property, they told him that he had not stopped at the stop sign and just missed hitting the girl. The worker didn’t understand what had happened and directed them to the plant office, where they reported the incident to a manager.
Ocean Concrete suspended the worker pending an investigation, which included reviewing footage from a video camera mounted in the truck. The footage depicted the truck coming close to hitting the nine-year-old girl, which shocked management.
On March 21, Ocean Concrete held an investigation meeting. The worker indicated that he wasn’t initially aware of what he had done. When he saw the video, he was also surprised by how close he had come to hitting the girl.
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Worker accepted responsibility
The worker was upset and accepted responsibility for the incident, apologizing and saying it wouldn’t happen again. However, Ocean Concrete terminated the worker for being grossly negligent in his driving.
“I think [Ocean Concrete] did what they had to do under the circumstances, based on their concerns and their sense of how this needed to be treated,” says Penner. “To convey the seriousness of what occurred, they had to take this step [of termination] and probably they knew that there was some vulnerability to this guy being reinstated.”
The union grieved, arguing that the incident was an error in judgment, not negligence, and the worker was remorseful. It also argued that the investigation should have been more thorough.
The arbitrator found that the incident could not be characterized as an error in judgment, as the worker saw the pedestrians and he still didn’t fully stop or yield. It also found that the investigation was fair and timely, and any additional investigating likely would not have revealed anything that wasn’t already known, as the worker quickly admitted to his misconduct, said the arbitrator.
The arbitrator noted that the union mentioned prior incidents with other employees where there was no discipline, but there was no evidence presented. In addition, it didn’t matter that no one was hurt – an employer doesn’t need to wait for an injury to address a safety infraction, the arbitrator said.
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Legitimate safety concern
The arbitrator found that the worker had the responsibility as a professional driver to do everything possible to avoid the pedestrians. Although it was a near-miss and the worker had no previous discipline, it was serious and Ocean Concrete had a legitimate concern that an employee with training and experience disregarded the rules regarding stopping and yielding to pedestrians, the arbitrator said.
In high-risk work environments where no risky behaviour can be tolerated, the best way to address that is to have policies in place that are clearly communicated, says Penner.
“[Clearly communicate] that there’s no margin for error here – if you commit a roadside offence or your conduct creates harm, it is subject to immediate dismissal,” he says. “There will still be a determination of whether the application of that policy was fair [if there’s a grievance], but at least the policy is there.”
The arbitrator noted that the worker wasn’t a long-service employee, but his six years of service was “considerable,” and he was remorseful. He also co-operated in the investigation and made it clear that he wouldn’t repeat it, the arbitrator added.
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Test to determine level of discipline
When there is any kind of discipline flowing from an accident, there’s a test referred to as the Wm. Scott test that was established by the BC Labour Relations Board, says Penner.
“We have an event that the arbitrator found clearly warranted discipline – this wasn’t a pure accident, [the worker] knowingly rolled through what should have been a complete stop so there is some fault to attribute,” he says. “The second part of the test is, was the employer’s response to that commensurate to the seriousness of the event? And the third part ties in with the second, which is did the employer have any sort of alternative to the discipline that was imposed?
“Ultimately, the arbitrator was satisfied that this was somebody who in the past had responded to minor discipline with an immediate change of behavior,” Penner adds. “And given how contrite he was and how impacted he was by his own conduct, the arbitrator found that this is a guy for whom a suspension would change his behavior.”
Ocean Concrete was ordered to substitute a six-month suspension for the termination and reinstate the worker at the end of the six-month period following his termination.
The role that technology played in the investigation and decision is one employers should take note, says Penner, adding that the use of surveillance tools might on its surface seem to infringe on employee privacy but it could help both sides in the event of an incident.
“It’s something to be negotiated, [maybe] through your occupational health and safety – is there a fair way to protect the employer’s interests and balance those with the rights of the individual employees?” he says. “But it comes down to, if you’re going to use video surveillance, make sure everybody knows the expectation is that it’s a tool to enforce the employer’s policy – so long as the employer’s policy is sound and communicated, then it will not only save the employer in terms of imposing discipline, but had there been an accident it also would be useful evidence in terms of protecting the employer from liability from a third party.”
Penner notes that, although the worker in this case was reinstated, Ocean Concrete’s decision to terminate the worker had value as a deterrent – something that can be particularly important in an environment where safety is a heightened concern.
“Optically, what [Ocean Concrete] can say is, ‘We took this sufficiently seriously that we fired this guy, and it’s only because an arbitrator told us to take them back that we took them back,’” says Penner. “I think they chose to run with it because they wanted that deterrent effect and they wanted the arbitrator to confirm that this was sufficiently serious that termination was actually a viable consideration.
“The arbitrator found that it was excessive, but he didn’t suggest that there was anything vexatious about the employer’s conduct.”
See Ocean Concrete, a Division of Lehigh Hanson Materials Ltd. v. Teamsters, Local Union No. 213, 2022 CanLII 112077.