Presented by: Susan L. Beach, JD
Presented at: UPPER ISLAND SAFETY CONFERENCE Campbell River, BC May 30-31, 2016 Presented by: Susan L. Beach, JD
Introduction In this seminar I will start at the end, arbital law on discipline and dismissal for safety infractions and work forwards to addressing unsafe work performance. 1. What do arbitrators consider when reviewing discipline for safety violations? 2. What evidence is needed to defend enforcement of poor safety performance? 3. What can be done to improve safety performance?
Basic Principles of Safety in the Workplace In cases involving the discipline or dismissal of an employee for a safety-related infraction, the arbitral case law establishes a number of guiding principles to judge the appropriateness of the punishment. A non-exhaustive list of the pertinent principles includes: 1. Safety in the workplace is both a stringent statutory obligation and an important industrial relations concern that involves employers, unions and employees. Given the potential consequences, safety infractions are among the most severe workplace offences.
Basic Principles of Safety in the Workplace 2. The employer has a legal obligation to provide a safe and secure workplace for its employees. Hand in hand with this obligation is the employer's authority to insist that workers perform their duties in a safe and efficient manner. 3. Workplace misconduct arising from deliberate, reckless, or negligent behaviour and which results in a potential safety threat or actual injury is grounds for significant discipline, up to and including dismissal.
Basic Principles of Safety in the Workplace 4. There does not have to be a physical injury or actual harm to establish the seriousness of the incident. 5. The mitigating circumstances that an arbitrator will consider in a safety discipline case are those accepted disciplinary elements as listed in Wm. Scott et al. [1977],1 Can. LRBR 1 (BCLRB) and applied consistently. In any particular safety related offence, the most important mitigating factors are those that will address the probabilities of the grievor repeating the same type of offence.
Basic Principles of Safety in the Workplace 6. Safety rules have to build in the concept of the duty to accommodate. These rules have to ensure that, while they may be stringent and demanding, they also incorporate concepts of equality that eliminate all forms of discrimination. Re Imperial Tobacco Canada Ltd. and Bakery, Confectionery, Tobacco Workers and Grain Millers International Union, Local 364T, [2001] 65 C.L.A.S. 100 (Lynk) cited in Goodyear Canada Inc. v. U.S.W., Local (2008) 168 L.A.C. (4th) 129, 92 C.L.A.S. 163.
Test to Justify Discipline 1. Has the employee given just and reasonable cause for discipline by the employer? a) Was the standard of work performance clear and reasonable? b) Was the standard communicated to staff? c) Was the necessary supervision and training provided at an acceptable level? d) Has the employee been warned that failure to comply is subject to discipline up to and including termination?
Was the Standard of Performance Reasonable and Clear? Specific detailed enough to understand and contain rationales for the policy. Measurable how and when and how often is this to be done? Or how to you measure safety compliance? Attainable don t draft unrealistic policies and procedures that are almost never complied with. Policies and procedures should be real and not the gold standard for the best day, at the best time, in the best situation etc Realistic As indicated, make the policies and procedures directly applicable to the job and are doable. Timely ensure time specifications are indicated. Again, how often and when is this procedure to be used.
Does Staff Know the Standard? Define expectations and explain rationale. Do they understand what they are required to do to comply with safety conditions? Provide the necessary equipment. Document equipment provided, when it is replaced, when it is checked, calibrated, repaired etc Provide the necessary training. Document all training and who attended. Consider a survey of what employees think of their safety training (see handout for an example)
Was the Necessary Supervision and Training Provided at an Acceptable Level? Monitor the results after the training. Supervise to ensure what is taught is being applied. After the training measure the performance. Is their compliance with the safety procedures, use of equipment, incidence of injuries, reduced? What other methods can you use to measure safety performance? Ensure there is a reasonable level of supervision. Document supervision in some manner or have a regular system of supervision and follow it.
Warnings Employees must understand the consequences of failing to abide by safety procedures. Without sufficient warning a discipline may not be upheld by the arbitrator or court. If consequences are not consistently applied then the employee may be able to reasonably infer they are not important and no consequences will flow from their breach with the result that the discipline will not be upheld by arbitrator. If just starting a new Safety Initiative, consider starting with verbal warnings, then written, then tougher penalties, such as suspensions.
Test for Dismissal A general principle is that before an employer decides to terminate someone for not doing the job properly, they must establish that the employee is unlikely to respond to some lesser sanction such as a suspension or demotion to another position. To what extent is it likely that this employee, if returned to the workplace, can be relied upon to conduct himself or herself in a way that is safety for others? To what extent is it predictable that the misconduct demonstrated here will be repeated? The employment relationship will be incapable of reparation if the offending employee is likely to render the employer incapable of fulfilling its obligation to provide a safe workplace pursuant to the Workers Compensation Act and its regulations.
Test for Reasonableness of Discipline 2. If discipline is justified, was the employer s decision to dismiss the employee an excessive response in all the circumstances of the case, if excessive, what is the appropriate discipline?
Test for Reasonableness of Discipline/Dismissal - the Scott test a) How serious is the immediate offence of the employee, how far is the behaviour from acceptable performance? b) Does the employee have a long service record, proved to be an able worker and had a relatively free disciplinary history? c) Was the employee s conduct premeditated, deliberate, or repetitive, or reckless as in just not caring, capable, but not caring?
Test for Reasonableness of Discipline d) Has earlier and more moderate forms of corrective discipline and not proven successful? e) Has the employer attempted earlier and more moderate forms of corrective discipline of this employee that did not prove successful in solving the problem? f) Is the discipline of this individual employee in accord with the consistent policies of the employer or does it appear to single out this person for arbitrary and harsh treatment?
Test for Reasonableness of Discipline g) Was this an isolated incident? h) Did the employee understand, were they trained properly, did they understand the procedure or order given to them? i) Did the grievor apologize right away or after union/legal advice? j) Was the grievor permitted the opportunity to explain or deny the offence?
Test for Reasonableness of Discipline k) Has grievor previously promised to do better? k) Have previous efforts to rehabilitate the grievor been fruitless? k) Is there an excessive and cumulative history of safety violations? k) Is there documented knowledge of an agreement to comply with safety policies/last chance agreement? k) Did employer s penalty lead to economic hardship for grievor?
Collective Agreements and Safety Safety infractions generally fall under the purview of management s right to manage the enterprise, direction the workforce and establish wage rates. Management may institute policies and procedures that are not contrary to the Collective Agreement or statute, subject to: any estoppel that may arise, previous conduct, behaviour, disciplinary process, previous grievances, if need to, notify of change in management directive; Arbital review usually considers the reasonableness of the management requirement or standard.
Collective Agreements and Safety Policy and procedures should be reasonable. Some Collective Agreements have clauses such as: While at work, employees shall: a) Use such safety materials, equipment, devices and clothing as are intended for their protection and furnished to him/her by the employer or as are prescribed, b) Follow prescribed procedures with respect to the health and safety of employees,
Collective Agreements and Safety c) Take all reasonable and necessary precautions to ensure the health and safety of: i. Himself/herself ii. iii. His/her fellow employees, and Any person likely to be affected by the employee s acts or omissions d) Comply with all instructions from the Company concerning the health and safety of employees, e) Cooperate with any person(s) exercising a duty imposed under this Article or any health and safety law or regulations f) Cooperate with a Health and Safety Committee established for the workplace,
Collective Agreements and Safety g) Report to the Company anything in the workplace that is likely to be hazardous to the health or safety of the employee, his/her fellow employees or other persons granted access to the workplace by the employer, h) Report in the manner prescribed, every accident or other occurrence arising in the course of, or in connection with, his/her work that has caused injury to the employee or to any other person. Such notification must be made immediately. Many Collective Agreements do not have such clauses. This may be a consideration for your next bargaining round to ensure that safety is considered an important aspect of their work.
Initiating Increased Safety Monitoring If you want to increase safety monitoring: Decide if policies and procedures are clear and reasonable. Have they been communicated to staff? Has adequate training and supervising occurred? This may be considered satisfactory and return to these questions frequently.
Initiating Increased Safety Monitoring Occupational Health and Safety Committee Need to involve in plan, create draft plan, bring to them, see if can get buy in, not necessary, but helpful Union need to involve the union in the plan Advise union that will be documenting safety infractions to keep information on numbers of events, to measure safety performance and assess success of training, need for further training As always need to work within the Collective Agreement procedures, but some issues, such as keeping statistics would be administrative in nature to assess progress
Initiating Increased Safety Monitoring Let union and staff know. If there has been infrequent safety monitoring the employee may argue that the employer was not enforcing before so did not know had to follow. It is better to put all on notice that safety is a priority and there will be increased monitoring to ensure safety procedures are followed. Posters, meeting with union, staff meetings, additional training as needed or identified. Consider adding safety discussions in staff meetings with supervisors. Encourage supervisors to comment on safety concerns, give feedback as to how they are progressing. Consider adding Safety to Performance Appraisals (see handouts)
Feedback to Improve Performance Provide feedback on safety on performance appraisals, including reporting on safety concerns of others in a timely manner, during the act, not a week later. See handout for suggestions.
Feedback to Improve Performance While working provide positive feedback to the employees on their safety performance consistently at first, then on an intermittent basis. Document all. Work towards positive and negative feedback on safety performance. Document all. Provide general feedback at staff meetings and statistics if available. Consider how you measure safety performance? Not just claims, include safety concerns, infractions, near misses, incidents, reporting by employees,?
Steps To Discipline 1. Clear, reasonable policies; 2. All Staff should sign read, understood and agree to abide by all policies and kept in each personnel file; 3. Decide on types of safety infractions most serious, warranting suspensions and/or dismissal, highest risk of injury, zero tolerance (not always upheld by arbitrators, but helpful)
Steps To Discipline 5. Supply appropriate training, supervising, and feedback positive and negative; 6. Monitor keep track of safety concerns and infractions, reassess need for training, supervising, document. Document, document, document, training, supervising, infractions, discussions, staff meeting discussions, just write while you work!
Steps To Discipline 7. Decide on discipline strategy
Steps To Discipline 7. Decide on discipline strategy examples (a) (a) if new to job or just trained, allow a period of time for adjustment of work practices, just giving verbal positive feedback and suggestions for improved safety performance; allow for explanation by employee if serious concern, if serious, go to different discipline, written warning or depending on history suspension up to dismissal, discipline strategy needs to be predetermined generally, but applied individually;
Steps To Discipline (c) (d) after period of adjustment, comments positive and negative, need all comments documented in supervisor s notebook, not discipline; if not new, and employee knows or should know: start with meeting including union rep., explain what occurred, ask for explanation, if not satisfied with explanation, issue written warning noting safety infractions AND advising employee to change behaviour or further discipline including suspensions will result (needed);
Steps for Disciplinary Measures (e) next infraction, what is your scale, is there one? Some use points to assess severity of safety infraction with 100 points being termination, usually factories, propane facilities, forestry operations; (f) (g) increasing discipline depending on number of infractions, severity of infraction, cause of infraction, and any other factors relating to the infraction; customary increases: some do more than one written warning for minor safety infractions, some go to suspensions without pay and gradually increase;
Steps to Discipline General Tips: Always ensure that opportunity to explain is provided and documented even if they refuse to do so; Take careful notes of all meetings, concerns and brief verbal discussions, carry a small notebook like the police if necessary; Never do a meeting with just one employer representative; Safety histories need to be documented as well as other unacceptable employment behaviour
Think Safe! Questions?