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Persistent mockery, intimidation of supervisor was “juvenile and unworthy of a 12 year old”, warranted 6-month suspension of long-term employee

An employee’s persistent mockery and intimidating conduct towards a supervisor warranted a 6-month suspension, an arbitrator has held.

The employee’s conduct included the following:

1. On one occasion, after the supervisor greeted him, the employee started hollering aggressively at him, “Oh that’s the way it’s gonna be … Hi Dan, Oh Hi Dan, How are you.”  The employee continued to yell at the supervisor until he was far enough away that he could not hear him.

2. The next week, the employee was parked nearby and when he saw the supervisor, he rolled his window down and started hollering an aggressive and sarcastic greeting to him.

3. The next week, the supervisor met up with the employee who gave him a similarly aggressive greeting.

4.  When the supervisor was leaving work at the end of another day, the employee drove up in a truck so that he was close to the supervisor and rolled his window down and aggressively and sarcastically greeted him.

5.  On another occasion, the supervisor observed the employee see him, and said “good morning” and he replied with the aggressive greeting.  The employee continued with the loud aggressive greeting until the supervisor unlocked the door to the stores area and went in.

6.  Another day, the employee approached the supervisor and loudly greeted him, interrupting his conversation with another worker.

7.  Lastly, on another occasion, the employee very loudly and aggressively called out to the supervisor and carried on with an aggressive and bullying greeting.  This continued until the supervisor had reached the doorway that exits into a hallway.

The supervisor reported that the employee’s conduct was causing him to have trouble concentrating, he wasn’t sleeping, and his wife was concerned for their safety. He went to see his doctor and was referred for counselling.

The arbitrator found that the employee’s conduct appeared to relate to the supervisor’s efforts to bring some efficiency to an area of the company’s operations that was “in demonstrable need of change”.  The employee admitted that he had been deliberately sarcastic, that he knew his conduct was unwelcome, and that he had tried to get under the supervisor’s skin.  The arbitrator decided that his conduct violated the company’s violence and harassment policy.

The arbitrator stated that the employee’s conduct was “juvenile and unworthy of a 12 year old, let alone a man in his 50s.  It also however had a goading, threatening quality to it.”

The arbitrator concluded, however, that the employee’s conduct was “more immature than intentionally threatening”.  Also, had the supervisor warned the employee right away or reported the incidents under the violence and harassment policy (he said that he had not reported because he “did not want to make trouble” and feared how the employee would react), the employee might have changed his ways.

Given that, and the employee’s 34 years of service, the arbitrator reinstated the employee with no back pay, resulting in a six-month suspension without pay.  The employee was given “one last opportunity to show he can conduct himself in a civil and respectful way in his workplace.”

Hinton Pulp, A Division of West Fraser Mills Ltd. v Unifor Local 855, 2014 CanLII 57678 (AB GAA)

Persistent mockery, intimidation of supervisor was “juvenile and unworthy of a 12 year old”, warranted 6-month suspension of long-term employee

Total fines now $1.24 million in Christmas Eve fatalities after swing stage company and director fined

The total of safety fines paid for the December 24, 2009 swing stage collapse fatalities is now $1,240,000 after Swing N Scaff Inc., the company that supplied the swing stage platform (a suspended work platform), was fined $350,000.00 and a director of Swing N Scaff was fined $50,000.00 under the Ontario Occupational Health and Safety Act.

Four parties have now been convicted and fined as a result of this tragic accident: Metron Construction Corporation, a director of Metron, Swing N Scaff and a director of Swing N Scaff.

The Ministry of Labour states, in its press release, that at least six workers were on the swing stage suspended 13 floors above the ground when it broke apart in the middle and collapsed.  Ministry of Labour investigators found that the welds on the platform were inadequate.  Tragically, four workers died.

Swing N Scaff pleaded guilty to the Occupational Health and Safety Act offence of failing to ensure that a suspended platform and/or a component supplied to Metron Construction was in good condition.

The director of Swing N Scaff pleaded guilty to failing to take all reasonable care to ensure a suspended platform was in good condition and that a platform weighing more than 525 kilograms was designed by a professional engineer in accordance with good engineering practice.

Previously, Metron Construction was fined $750,000.00 for criminal negligence under the “Bill C-45″ amendments to the Criminal Code; that amount was increased on appeal from the $200,000.00 fine set by the trial justice.  Metron’s Criminal Code liability resulted from the actions of its site supervisor, who Metron admitted was a “senior officer” of Metron, so that his actions were taken to be the actions of Metron.  The site supervisor had directed and/or permitted six workers to work on the swing stage when he knew or should have known that it was unsafe to do so; directed and/or permitted the six workers to board the swing stage knowing that only two lifelines were available; and permitted persons under the influence of drugs to work on the project.

A director of Metron Construction was previously fined $90,000.00 under the Occupational Health and Safety Act for failing to ensure that non-English speaking workers received written material in their native languages and failing to ensure that training records were maintained; failing to ensure that the swing stage was not defective or hazardous (by allowing it to be used without having received any of the required information with respect to its capacity and use); and failing to ensure that the swing stage was not loaded in excess of the load that the platform was designed and constructed to bear.

The Ministry of Labour’s press release on the Swing N Scaff fine may be read here.

Total fines now $1.24 million in Christmas Eve fatalities after swing stage company and director fined

“It is not the Board’s role to chase” unrepresented employee: safety-reprisal complaint dismissed

The Canada Industrial Relations Board has dismissed a safety-reprisal complaint where the employee, representing himself, missed deadlines and failed to respond to CIRB correspondence.

The employee filed a complaint alleging that his employer took action against him for exercising his safety rights, contrary to the Canada Labour Code.  The employer said that the employee’s job performance was the reason for taking action against him.

The CIRB asked both parties for more focused submissions.  The employee did not provide his submission within the time frame set by the CIRB.  The CIRB then extended that time frame after the employee said that he had moved.  The employee then failed to open the CIRB’s registered letters or keep the CIRB apprised of any further changes in his address.

The CIRB quoted from a previous decision, Reid2013 CIRB 693 (CanLII), in which it had stated:

“As mentioned above, the Board is fully aware that Ms. Reid, like many unrepresented litigants, may not be familiar with the Code. But a complainant still has the ultimate obligation of going through his/her own material, including allegedly relevant documents, and drafting a complaint in accordance with the Regulations.  That obligation is not satisfied by filing hundreds of pages of documents and implicitly asking the Board to go through it and decide what, if anything, should form part of a complaint.”

The CIRB ultimately concluded:

“In this case, Mr. Shmig claimed in a discussion with the IRO that he never received the Board’s decision requesting more particularized pleadings. The IRO sent him another copy of the decision.  When Mr. Shmig failed to provide the requested pleading, he claimed in another discussion with the IRO that the emailed copy of the decision had never reached him.  Finally, after the Board granted Mr. Shmig an extension to file the requested particulars, Mr. Shmig failed to pick up two separate Board mailings which had been couriered to his last known address.

Ultimately, it is not the Board’s role to chase after a party for its pleading. The Board is satisfied that it provided Mr. Shmig with several opportunities to pursue his complaint. For whatever reason, Mr. Shmig chose not to do so.”

The employee’s complaint was therefore dismissed.

Shmig, 2014 CIRB 724 (CanLII)

“It is not the Board’s role to chase” unrepresented employee: safety-reprisal complaint dismissed

Alberta employer fined $80,000 following conveyor incident

An Alberta employer has been sentenced to a fine of $80,000 plus the 15% victim fine surcharge following a workplace incident which occurred in 2011 at its distribution center.

A worker was injured while bending down under a conveyor to plug in a portable weigh scale. As she bent down, she felt herself being propelled violently backward. A subsequent investigation determined that her hair had become entangled in the drive shaft under the conveyor. She sustained numerous injuries, losing part of her thumb and part of her hair.

At trial, the employer was convicted of two offences under the occupational health and safety legislation, the court finding that the employer had failed to establish the defence of due diligence. In its sentencing decision, the court considered the employer’s safety policies and its corporate commitment towards safety to be mitigating factors. However, the court noted that the employer had been convicted for failing to use all reasonable measures to ensure the safety of its workers who worked near the conveyor. Company officials had failed to recognize, over a four year period, that a large portion of the conveyor was unguarded. The court was also critical of the training given to workers about the dangers of conveyors. Thus, while the employer was concerned about safety, the court found that it had not been vigilant enough.

The court also considered the impact of the incident on the worker as increasing the gravity of the offence. However, the lack of a guilty plea was not treated as an aggravating circumstance. The court also inferred that the employer was remorseful based on the steps it had taken following the incident, and considered that a mitigating circumstance.

The court reviewed the sentencing jurisprudence but considered this case to be unique in relation to the fact that the employer’s oversight took place over four years and caused considerable pain and disfiguring injuries. Thus, a fine of $80,000 was considered appropriate.

This case serves as yet another example of the difficulty of successfully establishing a due diligence defence. It is also a reminder to employers to ensure they perform appropriate and thorough safety inspections and consider all aspects of the workplace that could potentially pose a danger to workers. This decision also demonstrates that while sentencing precedents are useful, the court is not bound by them and must consider all of the circumstances of the case in determining an appropriate sentence.

R. v. Value Drug Mart Associates Ltd., 2014 ABPC 255 (CanLII)

Alberta employer fined $80,000 following conveyor incident

Dismissal of safety-reprisal complaint set aside where employee, mistaken about start time, failed to attend hearing

An employer is facing a resurrected Ontario Labour Relations Board safety-reprisal hearing after the case was dismissed when the employee failed to attend the hearing.

The OLRB dismissed the complaint as abandoned after the employee failed to attend the hearing, which was scheduled to start at 9:30 am.  The OLRB, as is its practice, waited 30 minutes before it dismissed the application. The employer’s representatives were in attendance.

The next day, the employee sent a letter to the OLRB stating that he mistakenly arrived for the hearing at 11:30 am believing that it would start at noon.  He said that he had assumed the noon start time because the previous mediation in the case had started at that time.

The OLRB stated that while it had sympathy for the employer, the employee had demonstrated an effort to participate in the hearing.  He had traveled from Ottawa to Toronto only to find out that he was incorrect about the starting time, and had immediately notified the OLRB about the error and sought to have the complaint re-listed. The OLRB agreed to re-list the complaint for hearing, and overturned the dismissal.

Boville v Alltrade Industrial Contractors Inc, 2014 CanLII 50099 (ON LRB)

Dismissal of safety-reprisal complaint set aside where employee, mistaken about start time, failed to attend hearing

“Zero tolerance”, automatic suspension approach to safety violations criticized, written warning substituted

Employers are increasingly taking a “zero tolerance” approach in which a minimum level of discipline – whether a suspension or dismissal – is imposed for certain serious safety violations. In a recent case, an arbitrator criticized the approach as unfair to the employee.

Plant security, conducting a random vehicle search as the employee left the premises, found a partially-consumed bottle of flavoured vodka beneath some camping equipment in the trunk of the vehicle.  The employee co-operated in the search, expressed surprise at the presence of the bottle, and voluntarily submitted to drug and alcohol testing, the results of which were negative.

The employee explained that he had borrowed his wife’s vehicle when his vehicle would not start, and that his daughter had previously borrowed his wife’s vehicle for a camping trip and had apparently not unpacked the trunk. He confirmed this on a call to his daughter in the presence of plant security. He said that he was unaware that the bottle was in his trunk when he drove to work.  The employer admitted, at arbitration, that it had no reason to disbelieve the employee.

The company suspended the employee for three days.

The company said that it had a zero tolerance policy on possession of alcohol on plant property, calling for a minimum three-day suspension.  The company’s “Rules of Conduct” stated that “Possession and/or consumption of alcohol and/or illicit drugs on Company property” would be “subject to severe discipline, up to and including discharge”.  All parties agreed that the workplace was safety-sensitive.

The arbitrator referred to “zero tolerance in the broader sense of requiring that each and every incident be investigated and addressed”, in contrast to zero tolerance “in the narrow sense of an automatic penalty for every violation regardless of the circumstances.”  He stated, “Zero tolerance in the latter sense has been held to be inconsistent with the just cause standard, so that a rule that would otherwise pass the KVP test must fail on the first criterion of consistency with the collective agreement”.

In conclusion, the arbitrator agreed that the company had just cause to discipline the grievor for violation of the rule against possession of alcohol on company property.  He concluded, “I accept that in the interest of workplace safety the Company is justified in adopting an approach of zero tolerance for breaches of that rule, to the extent that each and every incident is to be investigated and appropriate discipline imposed. I reject the imposition of an automatic penalty of suspension without regard to the totality of the circumstances as inconsistent with the just cause standard set out in the collective agreement.”

U.S. Steel v United Steelworkers, Local 1005, 2014 CanLII 50003 (ON LA)

“Zero tolerance”, automatic suspension approach to safety violations criticized, written warning substituted

Fake e-mail to other employees results in criminal mischief conviction

An Ontario employee has been convicted of criminal mischief after sending a fake e-mail to fellow employees, degrading another co-worker.

The employee, apparently upset that the co-worker rejected his request that they be more than friends, sent an e-mail to nine other employees, purportedly from the female co-worker. The e-mail degraded the co-worker professionally, sexually and physically.

The employee pleaded guilty to criminal mischief.

The employee also pleaded guilty to separate criminal harassment charges, apparently unrelated to the workplace. He received a suspended sentence and two years’ probation on the mischief charge, and 90 days’ imprisonment (in addition to 2 months’ time served) on the criminal harassment charge.

R. v. Dewan, 2014 ONCA 755

Fake e-mail to other employees results in criminal mischief conviction

Ontario taking steps to implement GHS (Globally Harmonized System of Classification and Labeling of Chemicals), amend WHMIS requirements

The Ontario Ministry of Labour is proposing amendments to safety laws as part of a broader national and international initiative to implement the “Globally Harmonized System of Classification and Labeling of Chemicals”, known as “GHS”, which is a worldwide system of classifying and providing information about hazardous workplace chemicals.

The proposed amendments are to the Occupational Health and Safety Act provisions that relate to the Workplace Hazardous Materials Information System (WHMIS), and to certain provisions of the WHMIS regulation.

The MOL notes that the United States, Australia, New Zealand, the European Union, China, Japan and South Korea are already in the process of implementing the GHS.

In Canada, the federal government has taken steps to implement the GHS.  The MOL says that, “All provinces and territories must amend their WHMIS requirements to reflect the changes to WHMIS legislation and regulations”.

The MOL is proposing that new requirements would come into force on June 1, 2015, but that there would be a lengthy transition period until June 2017 for full implementation of the GHS.

The MOL’s consultation period runs from November 3, 2014 to December 19, 2014.

For more information, click here.

Ontario taking steps to implement GHS (Globally Harmonized System of Classification and Labeling of Chemicals), amend WHMIS requirements

Ontario MOL consulting on extending noise protection to all Ontario workers

The Ontario Ministry of Labour is proposing that all Ontario workers be protected from excess noise in the workplace.

Currently, the regulations for Industrial Establishments, Mines and Mining Plants and Oil and Gas-Offshore include noise-protection provisions.  However, many Ontario workplaces are not covered by those regulations.

The MOL says that examples of Ontario workers that are not currently covered by noise-protection requirements in the existing regulations, are those in health care facilities, schools, farming operations, fire services, police services and amusement parks.

The MOL has also released a proposal to introduce noise protection requirements for Ontario construction workers.

Comments on the proposal are due on December 29, 2014.

For more information, click here.

Ontario MOL consulting on extending noise protection to all Ontario workers

Federal work refusals now require “imminent or serious threat”

Federal employers have a new definition of “danger” to apply, and an updated work refusal process to use, effective October 31, 2014.

The federal government amended the definition of “danger” to, according to a government statement, “ensure that work refusals are used only when employees are facing an imminent or serious threat to their life or health.”

“Danger” is now defined as “any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered.”

The previous definition of “danger” was the somewhat-convoluted, “any existing or potential hazard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity, and includes any exposure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system”.

The federal Labour Program also states, on its website,

“The refusal to work process has been amended to clarify when the employer and health and safety committee (or representative) must conduct their investigations and the Labour Program has developed a report template that can be used to record the findings. For further information, please consult Information document 4, “Right to Refuse Dangerous Work” and a series of questions and answers pertaining to the restructured process.”

 

Federal work refusals now require “imminent or serious threat”

Failing to correct hazards, pay OSHA fines gets U.S. business owner taken into custody

An Illinois business owner has been taken into custody after his business failed to correct serious trenching hazards and pay Occupational Safety and Health Administration penalties.  The case illustrates the personal risk to business owners and executives who neglect occupational health and safety legislation.

An April 2013 statement from OSHA said that the business owner had been cited for “seven safety violations, including three willful, for failing to protect workers from cave-ins and moving soil and chunks of asphalt during trenching operations.”

A U.S. judge granted a motion filed by the U.S. Secretary of Labor against the owner, a sewer and water contractor.  OSHA states the business owner had a “long history of failing to comply with OSHA standards and orders of the independent Occupational Safety and Health Review Commission”.

OSHA reports that the court had previously issued an enforcement order against the owner and when he failed to comply, the court held him in contempt.  Then, after receiving no response from the owner, the court granted the Secretary of Labor’s motion to take “coercive actions”, ordering him placed into the custody of the Attorney General.

OSHA says that the owner will remain in custody until he has either fully complied with the court’s enforcement order or demonstrated that he is unable to comply.

OHSA’s statement on this matter may be read here.

Failing to correct hazards, pay OSHA fines gets U.S. business owner taken into custody

New Ontario Safety Blitz Targets Large Number of Industrial Workplaces

The Ontario Ministry of Labour will conduct a safety blitz of industrial workplaces from November 3rd to December 14th, 2014.

Although the MOL’s bulletin regarding this blitz does not say it, employers should ensure that all of their health and safety postings are up, and that all workers have received the mandatory health and safety awareness training; inspectors will likely be checking those items.

The MOL states that its inspectors will “visit wood and metal fabrication, manufacturing, chemical and plastics and automotive plants and other industrial sector workplaces.”  This description includes a large number of workplaces.

The inspectors will be checking for machines that are not properly guarded, locked out or blocked.  The MOL says that inspectors will also check that workplaces have a strong internal responsibility system in place; that employers are “working to prevent awkward postures and repetitive motions that could lead to musculoskeletal disorders involving injuries and disorders of the muscles, tendons, nerves, joints and spinal discs”; and that workers are protected from exposure to chemicals (such as metalworking fluids and degreasing solvents) that could cause occupational disease.

The MOL’s Bulletin on the blitz may be accessed here.

New Ontario Safety Blitz Targets Large Number of Industrial Workplaces

Ontario Ministry of Labour Inspector Charged with Extortion

According to a Toronto Police news release, on October 21, 2014, a Ministry of Labour Inspector was arrested and charged with breach of trust, accepting a benefit from a person having dealings with government, and extortion, after he allegedly requested money from the owner of a business after a safety audit revealed the business did not comply with certain provincial standards.

Toronto Police state that the investigation began on June 25, 2014 when they received a call for a Fraud in the Markham Road and McNicoll Avenue area. The owner of the business alleged that a Ministry of Labour inspector conducted a safety audit and found a number of items that were not in compliance with provincial standards. The inspector left the owners to fix the issues; however, it is alleged that he returned to the business and made an improper request for money from the owner.

Joseph Ah-Hone, 55, is scheduled to appear in court on December 4, 2014.

By way of the Toronto Police news release, the Ontario Ministry of Labour reminded the public that inspectors are trained in legislation, policy and procedures and technical requirements, and adhere to a code of professionalism. As public servants, inspectors are forbidden from accepting money or commissions for any of their services.  Police say there may be other victims.

Click here to read the Toronto Police news release.

Ontario Ministry of Labour Inspector Charged with Extortion

Court considers safety, fatigue of replacement workers in granting picketing injunction

A British Columbia judge has considered an employer’s concerns for the safety of replacement workers, in granting an injunction against picketing workers.

The employer and Unifor were in a labour dispute.  Unifor was picketing the employer’s place of business.  In an affidavit submitted on the company’s motion for an injunction, a company manager expressed concern over the safety of the replacement workers due to fatigue:

“In addition to the financial consequences of these increased delays and of greater concern to Cascade are the potential health and safety consequences for CanJet and Trenton personnel. It is very rare that we schedule our production work force for 12 hour days for a significant number of days in a row. The reason this is rare is because of a concern we have for the health and safety of the workers due to fatigue. These workers are repairing complex commercial aircraft and are working with complex tools and equipment. During the course of their duties, they are operating flight controls and doing high-skilled professional work that without due diligence could result in significant damage to the aircraft and/or serious injury to personnel. During the time that the bus is stopped when trying to enter or exit the facility, these personnel cannot simply rest as they are constantly subject to picketers yelling, tapping and scraping their picket signs on the bus and peering through the windows of the bus, sometimes with cameras. I have serious concerns that the number of hours these workers are spending at work and on their way to and from work due to the increased delays in crossing the picket line could lead to exhaustion and a serious work place accident.”

Madam Justice Sharma of the B.C. Supreme Court stated that, “In all the circumstances, I find that there is urgency to this application because of the health and safety concerns of the people working for Cascade.”  She added, “It is clear that Cascade may suffer irreparable harm if the injunction is not granted. I am particularly concerned by the escalation of matters since this matter started.”

The employer was therefore entitled to a temporary injunction prohibiting the union members from “blocking, hindering, delaying or obstructing”.

Cascade Aerospace Inc. v. Unifor (Local 114), 2014 BCSC 1461 (CanLII)

Court considers safety, fatigue of replacement workers in granting picketing injunction

“An employee does not necessarily get one free sexual harassment before he loses his job”, says arbitrator in upholding dismissal for Facebook harassment, threats

An arbitrator has upheld the dismissal of a unionized employee for one incident of sexual harassment and threats on Facebook.

After an incident at work in which the grievor was displeased with “X”, a female co-worker, the grievor went home and complained about X on Facebook. Although he did not identify X by name, he referred to what the arbitrator called a “distinctive personal characteristic” of X.  Another co-worker posted a comment on Facebook that suggested performing a physically aggressive act with X’s physical characteristic.  The grievor agreed with the comment and added a further suggestion on Facebook that a violent and humiliating sex act be performed on X.  He then mentioned a cruel nickname associated with X’s personal characteristic.  From start to finish, the grievor’s Facebook session lasted about 2 hours.

Within a few hours, X found out about the Facebook postings.  She complained to the employer, and explained that she had been teased about the personal characteristic when she was a child and was very sensitive about it.  The company then fired the grievor, finding that his comment referring to X was a reference to a violent and aggressive sexual act that was perceived to be a threat of both sexual and physical assault.

Arbitrator Laura Trachuk upheld the dismissal.  She stated that it would be reasonable for a woman reading the Facebook posts to feel threatened. The grievor had suggested, in those posts, that X be sexually assaulted.  He must have anticipated that X would see the posts because his Facebook “friends” included co-workers.  According to the arbitrator, “Making nasty comments on Facebook is not an acceptable response to frustration with a co-worker.”  The references to X’s personal characteristics could only have been made to hurt her.

In closing, the arbitrator stated that, “Some offences are so serious that they warrant discharge.  An employee does not necessarily get one free sexual harassment before he loses his job.”  The grievor was not a long-term employee and the company could have little confidence that he could be trusted never to harass someone else.

United Steelworkers of America, Local 9548 v Tenaris Algoma Tubes Inc, 2014 CanLII 26445 (ON LA)

“An employee does not necessarily get one free sexual harassment before he loses his job”, says arbitrator in upholding dismissal for Facebook harassment, threats

Ebola Preparedness for Employers: U.S. OSHA Launches Ebola Web Page

The United States Occupational Safety and Health Administration (OSHA) has launched an Ebola Web Page for employers providing information on Ebola and how to protect workers.

OSHA states that workers, including healthcare and airline workers, performing tasks involving close contact with symptomatic individuals with Ebola, or who work in environments contaminated or reasonably anticipated to be contaminated with infectious body fluids, are at risk of exposure.

OSHA’s guidance includes information on hazard recognition, medical information, standards, and control and prevention.

OSHA has also issued a “Fact Sheet” called “Cleaning and Decontamination of Ebola on Surfaces: Guidance for Workers and Employers in Non-Healthcare/Non-Laboratory Settings”.

Here in Canada, Public Health Ontario and the Public Health Agency of Canada have also issued materials and guidance regarding Ebola.

Employers – particularly those whose workers may be at greater risk of exposure to Ebola – should prepare a plan for dealing with Ebola, including the logistics of telecommuting arrangements.  Employers’ obligation under health and safety legislation to take every precaution reasonable in the circumstances for the protection of workers, includes an obligation to take reasonable precautions relating to infectious diseases.

Stay tuned to Occupationalhealthandsafetylaw.com for further workplace-safety updates relating to Ebola.

Ebola Preparedness for Employers: U.S. OSHA Launches Ebola Web Page

Trucker who punched customer in the mouth was fired for cause

One would think it self-evident that employees who punch a customer’s employee in the face may be dismissed for just cause. But it took an appeal for an employer to win on that issue.

The employee was a truck driver with a small, privately-owned trucking company.   While at a customer’s premises, he got agitated at one of the customer’s employees and punched him in the mouth, knocking out one of his teeth.  The employer dismissed the truck driver and refused to pay his Canada Labour Code termination and severance pay.  The employee then filed a claim for those amounts.

Surprisingly, an Inspector under the Canada Labour Code, who was the first-level adjudicator, decided that the employer did not have just cause for dismissal because the company’s “expectations” had not been clear, there had been insufficient supervision to ensure compliance, and there had been no “clear warnings” as to what would happen if the employee engaged in unacceptable conduct.

The employer appealed to a referee, who disagreed with the Inspector.  The one incident, taken on its own, was just cause for dismissal.  The truck driver showed no remorse for his actions, even at the hearing where he said that the customer’s employee deserved what he got.   The appeal referee found that the truck driver had been evasive and dishonest at the appeal hearing.  The referee held that the punch was unprovoked and constituted just cause for dismissal; this meant that the employee was not entitled to termination pay and severance pay under the Canada Labour Code.

Although the employee had a spotty performance record, including a warning for a previous violent incident at a customer’s premises in which he was alleged to have threatened one of his co-workers with a hunting knife, the appeal referee decided that he did not need to rely on the past incidents, given the gravity of the later assault on the customer.

Our posts on other dismissal-for-violence cases can be viewed by clicking on the “Violence and Harassment” category on our occupationalhealthandsafetylaw.com blog.

Warner v Moore Brothers Transport Ltd., 2014 CanLII 54390 (ON LA)

Trucker who punched customer in the mouth was fired for cause

Worker who spread rumour that MOL inspector “paid off” by company, and that company was closing, was fired for cause

A worker who contacted a Ministry of Labour inspector with safety concerns but didn’t get the answer he wanted, and then spread rumours that the MOL inspector had been “paid off” by the company, was dismissed for cause, an Ontario judge has decided.

The company, at the wrongful dismissal trial, denied that it dismissed the employee for complaining about safety issues.  The company instead called evidence about a series of concerns with the employee’s performance, including allowing an unauthorized person to enter a restricted area; permitting three employees to leave work for one hour without punching their time card; approving a full skid of product that had labels missing; winking at a female employee and touching her hand; falling asleep during his shift; failing to wear a required face mask; attempting to engage co-workers against the company; and spreading rumours about the MOL inspector.

With respect to those rumours, three co-workers had signed a statement saying that the employee was spreading rumours that the MOL inspector was a “rat” and had been paid by the company to dismiss his complaints.

Shortly after receiving that signed statement, the company terminated the employee’s employment for creating a “poisoned work environment” and spreading false rumours about the MOL inspector. The company claimed just cause for dismissal.

At trial, the employer said that the MOL inspector had attended and had found no violations of the Occupational Health and Safety Act or that they were minor.

With respect to whether the company had just cause to dismiss the employee, the judge decided that the “cumulative incidents were not minor or trifling. They affected the workplace as a whole”.  The employee had been insubordinate and had attempted to harm the employer, including spreading rumours that the company was closing.  The employee had not been fired in retaliation for raising safety issues.  The company had just cause to dismiss the employee.

Chopra v. Easy Plastic Containers Limited, 2014 ONSC 3666 (CanLII)

Worker who spread rumour that MOL inspector “paid off” by company, and that company was closing, was fired for cause

Owner/developer was not responsible for civil damages sustained in a workplace incident 20 years ago

Over 20 years after a workplace incident that seriously injured a worker, the Alberta Court of Queen’s Bench has dismissed the worker’s civil action against a developer.

The worker had been working on a rooftop of a condominium conversion project in March 1994 when he slipped on an icy roof and fell through a piece of plywood covering a hole cut through the roof for a skylight. The worker sustained serious injuries and was rendered a paraplegic. A report from Alberta OHS prepared following the incident noted several deficiencies at the work site but charges were not laid.

The worker commenced a civil action against three parties thought to be outside the workers’ compensation scheme. Two of those parties were ultimately let out of the action after the Court determined that they did fall within the workers’ compensation scheme. The remaining defendant was the owner of the property and the developer of the project. The worker alleged that the developer was liable for the incident on the basis of negligence in the development and supervision of the project, vicarious liability for the project manager, and breaches of the Occupier’s Liability Act.

One of the aspects considered by the trial judge was the impact of the statutory requirements under Alberta’s Occupational Health and Safety Act (“OHSA”). The Court confirmed that while a breach of the OHSA could inform on the reasonable standard of care, it could not create an enforceable duty. Further, the evidence did not establish that the OHSA had been breached as it did not impose any duties on an owner/developer. The OHSA in force at the time of the incident (RSA 1980) has since been amended but while many aspects of the legislation have since changed, the current OHSA also does not impose any duties on an owner directly, unless the owner is considered the prime contractor.

Ultimately, the Court found that while the developer did owe a duty of care to the worker, that duty was limited in scope and was restricted to the selection of a competent project manager. The developer was not responsible for supervising safety at the work site. The court found that the developer’s selection of the project manager was reasonable and satisfied its duty of care to the worker. Further, the Court determined that the project manager’s relationship to the developer was that of an independent contractor such that there was no basis for a finding of vicarious liability. The Court also dismissed the worker’s claim that the developer was liable under the Occupier’s Liability Act on the basis that the developer had exercised reasonable care and supervision of the project manager.

The Court did however proceed to find (in obiter) that the project manager was negligent on the basis that it had: failed to keep the roof clear of ice and snow and failed to ensure that an appropriate cover was designed and appropriately secured.

While the developer in this case was not found liable, this case serves as an important reminder of the importance of ensuring that the requirements under the OHSA are met, and notes that in certain cases, the failure to do so may expose parties which are outside of the protection of the workers compensation scheme to damages in a civil action.

Heikkila v. Apex Land Corporation, 2014 ABQB 589 (CanLII)

Owner/developer was not responsible for civil damages sustained in a workplace incident 20 years ago

Alberta Employer Liable for Employee’s Negligent Driving of Company Vehicle – Even Though Employer Told Him Not to Drive It

Alberta employers should heed a recent appeal decision in which an employer was held liable for damage caused by an employee while driving a company vehicle – even though he was told not to drive it.

The employee worked for a roofing company. He was working on a residential roof. The employer gave him access to a company truck and trailer which were parked at the site, but only to access supplies and to keep warm. The employer told him not to drive the truck.

The employee disobeyed the instructions and drove the truck and got into an accident.

Section 187(2) of the Alberta Traffic Safety Act makes the owner of a vehicle liable if, at the time of the accident, the driver was in “possession” of the motor vehicle with the consent of the owner.

The appeal court decided that even though the employee did not have permission to drive the truck, he did have permission to use the truck for supplies and to keep warm. Thus, he was “in possession of” the truck, and the employer was liable for any damages caused by him in the accident. As long as the employee had consent to be in possession of the truck, which he did, the employer was liable.

In light of this decision, employers in Alberta – and across Canada – should review their policies on the use and “possession” of company vehicles. Especially where the employee does not have enough assets to satisfy a court judgment, plaintiff lawyers may seek to have the employer also declared liable.

Mustafi v. All-Pitch Roofing Ltd., 2014 ABCA 265 (CanLII)

Alberta Employer Liable for Employee’s Negligent Driving of Company Vehicle – Even Though Employer Told Him Not to Drive It