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Health and Safety Related Misconduct Justifies the Discharge of 37-Year Employee

In the recent arbitration decision of Tonolli Canada Limited v. United Steelworkers, and its Local 9042, Arbitrator G. T. Surdykowski upheld the just cause discharge of the grievor Mr. Frank Marsiglia from Tonolli Canada Limited (“Tonolli”) for repeated health and safety violations.

Tonolli is a unionized workplace that recycles lead acid batteries within a 140,000 square foot facility.  Lead and other substances found in the facility are designated substances under the Occupational Health and Safety Act (“OHSA”) and as such Tonelli must have a designated substance program for handling materials, for employee protective equipment and for monitoring levels of lead in employee blood.  Further, the company monitors air quality and requires all that enter the facility to wear personal protective equipment (“PPE”).

Mr. Marsiglia was employed by Tonelli for 37 years.  His last position held prior to dismissal was Flagman though he previously worked for the company as a Lead Hand.  On April 30 and May 1, 2012, Mr. Marsiglia was not wearing his appropriate PPE as required by the employer and the OHSA.  Arbitrator Surdykowski was satisfied by the evidence that Mr. Marsiglia’s conduct was willful.  The Arbitrator was clear, however, that these relatively minor instances would not on their own constitute “just cause” for discharge but that the dismissal had to be evaluated in the context of the employee’s employment record.  Specifically, Mr. Marsiglia was subject to the doctrine of culminating incident;

“The doctrine posits that, once proved, even a minor incident of misconduct opens the employee’s entire relevant record to arbitral review, and that if that record demonstrates that the employee is beyond rehabilitation, and the arbitrator is not satisfied that it is just and reasonable in all the circumstances to substitute a lesser penalty and reinstate the employee, the discharge will be sustained.” (at para. 71)

Mr. Marsiglia’s recent health and safety transgressions were among seven (7) incidents of misconduct in “a year-long journey of disciplinary misadventure” which included sleeping on the job, unsafe operation of a loader and other incidents of failing to wear PPE.   Further, Arbitrator Surdykowski found that the grievor did not offer an adequate apology or accept responsibility for his actions.  As such, the Arbitrator dismissed the grievance and found no fault in the Employer’s position that it had done all that it could, and that it had enough of Mr. Marsiglia.

Significance to Employers

This decision is valuable because it bolsters the position that health and safety violations and other types of misconduct can be enough to justify dismissal even when influential factors such as advanced age and lengthy service are considered.  The decision reinforces the position that employees have responsibilities and obligations to their fellow employees and the company with respect to health and safety.  Further, the decision acknowledges that employers are entitled to some deference in the “discipline ballpark”.

Lastly, this decision ought to be contrasted with Plester v. PolyOne Canada Inc. (PolyOne”), an Ontario Court of Appeal decision in the non-union context. In PolyOne the employee committed the serious safety violation of not locking out a machine before trying to fix it.  The significant differences between PolyOne and this case were that the employee only had minor incidents of discipline which occurred over 6 years earlier, the employer had not responded to similar health and safety infractions with just cause dismissals and  the trial judge determined that the employee-employer trust relationship had not been strained enough to justify dismissal.   As such, the longer an employee works without incident, the more deplorable a single violation must be in order to justify dismissal “with cause”.

Consider contacting the CCP Team if you have further questions regarding this article or when dealing with issues surrounding workplace misconduct, health and safety infractions and appropriate disciplinary responses to same.

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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