Zero-tolerance safety rules, often called “Life Saving Rules”, “Cardinal Safety Rules” or “Safety Absolutes”, are becoming more common in industry. An arbitrator has now upheld the firing of a unionized employee for one violation of a tie-off rule found in “Safety Absolutes”, even though the violation was for a brief period of time.
We have previously posted on other cases involving such zero-tolerance safety rules. In some cases, courts and arbitrators have held that the violation of the safety rule is just cause for dismissal, and in other cases not.
The employee, a scaffolder for a construction firm in Newfoundland, was found standing on a steel deck of a scaffold at a height of about 7′ 2″, and was reaching up to a height of about 12 feet and leaning out over the unguarded end of the deck.
The “Vale Newfoundland and Labrador Long Harbour Processing Plant Project”, at which the employee was working, had Safety Absolutes that read, in part:
“Given safety is our first priority on the Long Harbour Project, it is important that everybody understand our safety expectations, especially those that can have serious consequences. There are certain behaviours and actions that can adversely affect safety and the environment that we simply cannot permit to exist or happen and we must have zero tolerance.
These safety absolutes must be strictly enforced on our Long Harbour Project. Violations of the following will result in site access being revoked unless there are exceptional mitigating circumstances.
1. Not tied off above 6 feet (1.82 m) where fall protection is required.
. . .
Failure to comply with a Project Safety Absolute will result in the individual being removed from the site indefinitely. The individual will have to reapply through Labour Relations to come back on site and provide a suitable reason as to why he/she should be allowed to work on site, and their commitment to adhere to all HSE requirements. Further failure to adhere to the site requirements will result in the individual being permanently removed from site.”
There was evidence that the safety absolutes were “preached” to employees at daily safety meetings; the employee signed an acknowledgment form that he received a copy of the employee handbook; the handbook stated that violation of the safety absolutes would result in “immediate termination and revocation of site access”; and that the safety absolutes, and consequences of violating them, were brought to the attention of the employee at orientation.
The arbitrator upheld the employee’s dismissal. In the arbitrator’s opinion, the six foot tie-off rule was reasonable, “having regard to the risk to health and safety from falling from the height of six feet or higher, and the fact that a six foot rule tie-off is in effect at other construction sites in Newfoundland and Labrador and in other Provinces”. The employee’s safety violation was not trivial or insignificant. He knew that he was in violation of the rule. He had no explanation for the violation.
Resource Development Trades Council of Newfoundland and Labrador v Long Harbour Employers Association Inc, 2013 CanLII 88826 (NL LA)