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Date:
2015.09.03

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THE EMPLOYERS' EDGE

A Reckless Disregard for Safety is Cause for Termination

A recent Ontario arbitration decision has illustrated that a serious workplace safety incident can lead to termination. While the appropriateness of discipline will always turn on the specific circumstances, the case of Sudbury Integrated Nickel Operations v. Sudbury Mine, Mill & Smelter Workers’ Union Unifor, Local 598, [2015] CanLII 32018 provides a useful example of when termination is justified following a workplace accident.

In this instance a mining trolley became derailed from its’ tracks causing approximately $200,000 worth of equipment damage and 4 days of production loss. These trolleys weigh approximately 20 tons when empty, but can weigh up to 37 tons when fully loaded with muck ore or waste. The grievor in this case was the lead operator of the trolley at the time of the accident. The decision to terminate the grievor was the result of a thorough workplace investigation.

The main factual dispute was the root cause of the accident. The union argued that a broken rail cause the trolley to become derailed, while the employer asserted that the grievor was operating the trolley at a reckless speed. The employer asserted that the broken rail was a consequence of the accident, rather than the cause. The Arbitrator reviewed many days of complex evidence provided by experienced (but not expert) witnesses with respect to trolley and track mechanics. Ultimately Arbitrator Surdykowski was tasked with determining the extent of the grievor’s responsibility for the accident and whether the employer had just cause to terminate based on that determination.

Often in cases with unclear or complex competing evidence a decision maker will weigh evidence based on the credibility and reliability of the witness providing it. The grievor’s evidence failed in a number of respects on these factors:

  1. The grievor’s ability to estimate distance was at odds with other witness testimony and engineering drawings;
  2. The grievor refused to acknowledge the seriousness of the accident;
  3. The grievor refused the extent and cost of the damage; and
  4. The grievor downplayed the distance it took for his trolley to come to a complete stop.

Additionally, Arbitrator Surdykowski found the grievor’s evidence to be self-serving. In this case, the time that the trolleys required to travel back and forth between different stops (i.e. cycle times) was in issue as a reflection of the trolley’s speed. The grievor’s explanation that his “cycle times” were faster was that “heavier material loads faster”. The Arbitrator correctly pointed out in the decision that this statement defies the laws of physics. These issues in the grievor’s testimony led the arbitrator to give zero weight to his evidence. Consequently, the employer’s theory of the trolley being operated at a reckless speed was preferred versus the “broken rail” theory put forth by the union.

On the issue of whether termination was appropriate, the Arbitrator considered length of service, previous discipline, and evidence of remorse or admitting responsibility. At no point did the grievor apologize or admit to any level of responsibility. Furthermore the grievor was a relatively short-service employee with other safety related incidents on his record within the previous 2 years. The combination of these factors led to the decision that termination was appropriate in the circumstances and the grievance was dismissed.

The legal team at CCPartners LLP are experts in both occupational health and safety law and workplace investigations. If you’re an employer who has had a serious workplace accident please contact one of these lawyers.

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.

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