Dangerous machines are typically fitted with various devices that can affect their safe operation. Disabling or tampering with such devices increases the risk of serious and fatal injuries, not to mention liability under OHS laws. So you might assume that any worker who does so can be fired immediately and without notice. Unfortunately, dismissal cases are rarely that cut and dry. When can a company fire a worker for disabling a machine’s safety-related device? Here are two cases involving that situation. Although both cases involve union workers in Ontario, the basic principles apply across Canada and in both union and non-union workplaces.
OK TO FIRE WORKER
FACTS
A worker got caught in a paper re-reeler machine, breaking his arm. The incident was caused, in part, because a worker had taped down the “jog” button enabling the machine to operate without someone keeping a finger on the button. The MOL ordered the company to ensure that the jog button wasn’t taped down. The company posted the MOL order in the workplace; wrote a letter with the union outlining the concerns raised by this incident—including the taping down of the jog button—and how workers were expected to act; and gave this letter to each operator of this machine at individual meetings about the issues. Despite receiving this letter and attending such a meeting, a worker taped down the jog button and left it taped down at the end of his shift. When a co-worker took over on the next shift, he was startled and slightly injured when he started the machine, which immediately began operating because of the taped-down button. The company fired the worker the next day. He and his union challenged the termination.
RULING
The Ontario Labour Arbitrator ruled that the company had just cause to fire the worker.
EXPLANATION
Even though the jog button wasn’t technically a safety device, the court said that it performed a safety function akin to a “dead man’s switch.” Taping down this button was dangerous and created a hazard not only for the worker but also for his co-workers. The worker was also on notice that taping down the jog button was wrong. Yet he knowingly and deliberately did so anyway—in violation of the MOL order, the company’s instructions and his basic duties under the OHS Act, noted the court. Thus, the worker couldn’t be trusted to work safely. So although every safety infraction shouldn’t lead to termination, the company in this case had just cause to fire the worker—both in light of the nature of his conduct and the need to make it clear to other workers that tampering with machine control devices won’t be tolerated, concluded the court.
Canadian General Tower Ltd. v. U.S.W.A, Local 862 (Schramm), [2003] O.L.A.A. No. 801, April 14, 2003
NOT OK TO FIRE WORKER
FACTS
After a critical incident involving a mill, a company was fined $60,000. To prevent similar incidents, the company installed a bypass button on the mill as a safety device. Just three months later, a worker was assigned to work the mill instead of his usual duty. The manager got an anonymous message that the worker wasn’t operating the mill safely. The company investigated and discovered that the worker had put a pin in the bypass button to make it inoperative. The company fired the worker for violating safety procedures. He and his union challenged the termination.
RULING
The Ontario Labour Arbitrator ruled that the company didn’t have just cause to fire the worker.
EXPLANATION
The bypass button was a safety device specifically installed on the mill after an incident. Disabling this button endangered the worker and his co-workers and exposed the company to potential liability. The worker, who was a member of the JHSC, should have known better than to tamper with a safety device, said the court. Yet he deliberately did so anyway. However, there was a groove on the bypass button suggesting that the workers who regularly operated the mill had also routinely disabled the device. But none of those workers had ever been disciplined for doing so. And the company didn’t discover the worker’s infraction on its own; it was tipped off. These circumstances suggest that the company didn’t enforce its safety policies consistently. In addition, the worker took full responsibility for his actions. So the court concluded that a four-month suspension without pay would adequately discipline the worker while deterring other workers from committing similar safety infractions.
Goodyear Canada Inc. v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied, Industrial and Service Workers Industrial Union, Local 189L (Cummins Grievance), [2008] O.L.A.A. No. 22, Jan. 14, 2008
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