Employers take health and safety policy violations seriously as they can cause real harm to employees and the public. Most health and safety policies state that contravention can result in discipline up to and including without notice termination for cause. Some employers argue that only draconian punishments for safety violations can adequately ensure compliance. As demonstrated in the recent case of Grober v. 532470 B.C. Ltd., however, simply having such a policy does not create an absolute right to terminate for cause. Rather, employers must also consider the context of any alleged safety violation, including past practice and the employee’s employment history, before terminating for just cause.
In that case, the employee worked for the employer as a front-end loader operator for 11 years. The employee had almost 50 years in the mining industry and had been operating loaders for 30 years. The employer had, and the employee was aware of, “Golden Rules” for health and safety. Under those rules, if the employee was temporarily absent from the loader, he was required to ensure that, amongst other precautions, the bucket was lowered to the ground and wheel chocks were in place. The employer witnessed the employee violating these rules on two occasions, suspending the employee after the first instance and subsequently terminating him for cause after the second. It bears mentioning that there was no injury or harm to person nor property in either instance.
The court found that the two instances were insufficient to justify termination without notice, even though the employee admitted he had violated safety protocols. The court considered the following factors:
- The employer did not strictly enforce their policies in the past, although that was changing under a new manager.
- The manager who witnessed the incidences did not actively intervene and engage with the employee. During the first incident, the parties spoke after the fact. At the time of the second incident, the manager took a photograph and let the employee proceed without speaking to him.
- The employer’s messaging to the employee about the first violation was inconsistent. The relatively light tone of the verbal discussion with the employee and the serious tone in the subsequent disciplinary letter sent mixed messages.
- Contrary to its own discipline guidelines, the employer did not conduct any investigation, interview witnesses, adequately document the investigation, nor contact human resources personnel.
The court cautioned that the suspension and termination were disproportionate to the circumstances and the employee’s otherwise exemplary employment history. The court stated that the employer should have taken a more measured approach in both situations. The court awarded the employee $87,100 for 11 months of reasonable notice.
The court’s reasoning, particularly in points 2, 3 and 4, is suspect. The finding the first suspension was unjustified is also wrong on the law and if followed in other cases places other employees at higher risk. There is no legal requirement that a manager intervene immediately after a safety violation nor is the tone of discussion relevant when the policy and written warning were clear about the risk of termination for breach. Finally, no investigation or involvement of HR is needed in a case of a simple safety breach witnessed by the manager in charge. This decision is therefore ripe for appeal.
Nevertheless, Grober shows that employers must meet a high standard when terminating an employee for cause, even where there is a clear contravention of established policies. While there is no strict procedural requirement for employers to meet, an employer’s failure to follow their own policies for disciplinary procedure may form part of the overall context in determining just cause. Grober is a reminder that consistency in enforcing their safety and disciplinary policies (or, for that matter, other policies) can make all the difference. We recommend consulting a lawyer before terminating any employee for cause, as the price for getting it wrong can be steep.
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