Lock-out Violation and Failure to Report not Just Cause to Terminate a Supervisor: Company Inconsistent in Discipline for Safety Issues

by Dentons
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The Ontario Superior Court of Justice has held that a company did not have just cause to immediately terminate the employment of a supervisor for a lock-out violation and his failure to report the violation.

Polyone Canada Inc. is a manufacturing company that makes plastic pellets in various sizes and colours. The court found that Polyone had a strong culture of health and safety. In particular, the company emphasized its “Cardinal Rules”, which include the requirement that any machinery being worked on must be locked out and tagged by any employee working on the machinery.

The incident that gave rise to this case involved a line supervisor with 17 years of service with the company. On the day of the incident, the supervisor was informed that the dicer machine was not working properly. Preoccupied by frustration with some of his employees, the supervisor went over to the machine to clean it out. In the presence of some of his employees, the supervisor removed the internal safety screen and reached into the machine, momentarily forgetting that he had not first locked out the machine. Fortunately, neither the supervisor nor any other employees were injured as a result of the incident, which clearly constituted a breach of the company’s “Cardinal Rules”. Furthermore, despite being well aware of his obligation to immediately report the incident to management, the supervisor did not do so. However, the employees who had witnessed the incident were bothered by it and they reported the incident to management later that night. The company commenced a workplace investigation the next day and terminated the supervisor for just cause approximately one week later, following the completion of its investigation.

The supervisor then launched a wrongful dismissal action, which the company defended on the basis that it had just cause to terminate the supervisor’s employment as a result of his serious breaches of the “Cardinal Rules”. The court concluded that the supervisor’s failure to lock out the machine was very serious as it could have resulted in signficant harm. The court went on to state that the supervisor’s failure to report the incident was even more serious, as unenforced safety rules in a workplace where heavy equipment operates present a continuing safety risk. In addition, the fact that the employee held a supervisory position aggravated the matter, because the supervisor’s conduct could send a message to employees that the company safety rules were not important.

However, despite all of these findings, the court found that the supervisor’s conduct did not give rise to just cause for termination. The court found that in a similar situation which had occurred earlier in the year, an employee had failed to lock out a machine. The matter was not properly reported and the company did not discipline the employee. In light of the company’s response to the earlier incident, the court found that the termination of the supervisor’s employment for just cause in this case was disproportionate, despite the admitted seriousness of the supervisor’s actions. As a result, the court found the supervisor was entitled to 14 months’ reasonable notice.

One of the key points for employers to take away from this case is the critical importance of ensuring that they respond in a consistent manner to all violations of safety rules.

Categories: Caselaw Developments, Safety - Risk Management

Review a copy of the full decision here: http://www.canlii.org/en/on/onsc/doc/2011/2011onsc6068/2011onsc6068.pdf

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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