Quiz – Can You Permanently Demote a Worker for Her Poor Safety Record?

SITUATION A company hires a worker to operate a forklift. It gives her extensive training on how to operate the forklift safely and on the company’s safety rules. For nearly 10 years, the worker has a satisfactory safety record. However, over the course of 18 months, she gets into numerous incidents on her forklift, including hitting a light, driving in a restricted area, running into a desk and nearly hitting two co-workers. The company, which has a progressive discipline system, gives her a verbal and then a written warning and later takes her temporarily off of forklift duty for three, five and, finally, 15 days. After the worker gets distracted by a noise and runs into a steel pole, the company wants to permanently demote her to a position that doesn’t involve operating a forklift and pays about $2 less per hour. The worker is a single mother and the sole source of support for her daughter. QUESTION Can the company permanently demote the worker?

1. No, but the company can fire her.
2. No, because the worker’s seniority and personal circumstances warrant lesser discipline.
3. Yes, because it’s unlikely that a lesser form of discipline will compel the worker to improve her forklift driving.
4. Yes, because the worker endangered herself and her co-workers.

ANSWER C. The company can demote the worker because there’s no reason to believe that lesser discipline will improve her driving safety record. EXPLANATION This hypothetical is based on an Ontario case that’s a perfect example of the progressive discipline system when it’s working properly. The worker had six safety incidents on her forklift over almost two years. After the seventh incident in which the worker pierced a steel pole with the forklift’s tongs, the company permanently demoted her to a position at a lower salary. The worker filed a grievance. The labour arbitrator found that the demotion was appropriate. The purpose of discipline isn’t simply to punish a worker but also to correct the worker’s behaviour. In this case, the company had used every option available through its progressive discipline program and given the worker every opportunity to improve her forklift driving. But the worker’s conduct hadn’t improved at all and there was no reason to believe that imposing further discipline at this point would suddenly get her to correct her behaviour, concluded the arbitrator. WHY WRONG ANSWERS ARE WRONG A is wrong because if the company isn’t justified in permanently demoting the worker, it wouldn’t be justified in firing her. Permanent demotion, especially to a position with a lower salary, is serious discipline and should be scrutinized as carefully as termination. Here, the company would be justified in permanently demoting the worker based on her horrible safety record and lack of improvement despite lesser discipline. In fact, it’s likely that the company also has grounds to fire the worker. B is wrong because the worker’s seniority and personal circumstances don’t warrant lesser discipline. Discipline must be appropriate for the particular worker, considering such factors as the worker’s length of service, prior disciplinary record and sometimes even her personal circumstances. However, the worker’s misconduct in this case was serious. And her safety record is terrible. Besides, the company is cutting her some slack by demoting and not firing her. D is wrong because although the worker did endanger herself and her co-workers, her misconduct doesn’t automatically justify a permanent demotion. The type of discipline imposed must be proportionate to the misconduct. Operating a forklift is dangerous and the worker has proven that she’s a safety hazard on a forklift. So serious discipline is certainly warranted for her serious misconduct. But if the final incident had been the worker’s first safety infraction, it’s unlikely that permanent demotion would be warranted despite the fact that her misconduct posed a danger. SHOW YOUR LAWYER Butcher Engineering Enterprises Ltd. v. National Automobile, Aerospace, Transportation and General Workers Union of Canada, [2009] CanLII  28393 (ON L.A.), June 3, 2009