Monday, 22 September 2014

Failure to Follow Procedure for Asbestos Removal and Attempt to Cover Up Mistake Constitute Just Cause

Everyone makes mistakes.  It's a truism, but one that labour arbitrators give weight to when considering whether employee conduct amounts to just cause for discipline or discharge.  However, when it comes to safety in an already dangerous environment, the margin for error is much narrower.
And an arbitrator will be reluctant to reinstate an employee who, given an opportunity to come clean, persists in a version of events meant to minimize or deny any wrongdoing.

In Ontario Power Generation v. Power Workers Union (Grievance OPG-NT-1855), the grievor was a Front-Line Manager Assistant ("FLMa") on a roving outage crew.  The grievor and his crew reported to a Front-Line Manager and were responsible for performing working on OPG's facilities during scheduled outages. On one occasion, the crew was assigned to remove and replace gaskets on the Unit 1 generator end doors at the Pickering nuclear facility.  The grievor was aware that the gasket in question might contain asbestos, but upon visual inspection he concluded that it was a different type of gasket ("blue guard") which did not contain any asbestos.  The grievor directed his crew to remove the gaskets with hand tools, but when that proved difficult, he gave them the go-ahead to use power tools to grind the gaskets off the steel doors.  During this grinding procedure, an employee on another crew complained of the dust and his concern that the gaskets might contain asbestos.  Although the same employee complained three times, and the issue was brought to the grievor's attention, no formal complaint or documentation was created, the grievor did not check the OPG systems to confirm the type of gasket involved, and his crew was simply told to sweep up the dust created by the grinding.  Of course, throughout, the grievor and his crew did not utilize any of the required asbestos-containment techniques that would be required if work was being done on friable asbestos.

The employee who had complained, renewed his objections the next day, and his concerns ultimately reached OPG management.  The matter was investigated, and the grievor was called in to explain what had occurred.  The grievor confirmed that he had visually identified the gasket as not containing asbestos, and claimed that he had seen a "blue guard 3000" label on the gasket that was being removed - something which he later claimed to have been 'confusion', once it was clear that the gasket did, in fact, contain asbestos.  The grievor and his boss, the FLM, were both terminated, and another FLMa was given a 10-day suspension for their negligent handling of the work and the safety complaint.

Arbitrator Chris Albertyn recognized that the employer was not without some blame.  OPG was supposed to have created an inventory of all items that contained asbestos in the workplace, and was supposed to be in the process of replacing all asbestos-containing materials with non-asbestos substitutes, but had not met these commitments.  That being said, the grievor was a well-trained, licensed tradesperson.  He was aware of the risks presented by asbestos, having just completed a refresher on the issue.  The evidence established that the grievor never made an effort to confirm his visual identification of the gasket, even after a safety concern had been raised by a worker.  Instead, he took steps to avoid the necessity of an investigation, thereby putting his decision-making beyond scrutiny.  His alleged confusion about seeing a "blue guard" label was simply not convincing.  In the result, the arbitrator concluded:
... while I can see the grievor faced difficulty determining the true composition of the gasket in the early stages and that his blameworthiness then could be tempered with the institutional failures of the company and the other mitigating circumstances, that changed later. The manner in which the grievor responded towards the end of the day, and the next day, to the worker’s safety complaint and to the risk of asbestos contamination showed him to act in a manner best served to avoid difficulty for himself. He was willing to put at risk the health and safety interests of the employees for whom he was responsible, as for those coming on shift after him.
Although he had 7 1/2 years' service and no discipline on his record, Arbitrator Albertyn stated:
When an employee disregards the appropriate safety checks, when the risk of harm is substantial, as I have found to be the case here, the consequence to the employee should be severe, to reinforce the importance of safety and adhering to the safety rules and procedures.
In the result, discharge was the upheld as the grievor had not only been negligent, but had tried to cover up the possibility that he had misidentified the gasket, thereby exposing his co-workers to significant risk of harm.

While mistakes may be forgivable, making the conscious choice to ignore such an error, thereby exposing oneself and others to health and safety hazards, is not so easily overlooked.  Where an employee has responsibility for ensuring that work is performed safely, has the requisite training and resources, and still makes poor (i.e., unsafe) choices, the employment consequences need to be relatively harsh, if not dire.  Where mistakes are compounded by a lack of candour or an effort to cover up the error, the necessary trust in the employment relationship may be irrevocably damaged.  In those situations, employers need to consider the message that it is sending to the rest of the workforce about the importance of health and safety.

Do you have a question about health & safety in the workplace?  Trying to figure out how to respond to safety violations?  Feel free to contact Lance Ceaser for assistance.


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