'The employer has an onus to treat the conduct with severe consequences,' says lawyer
An Alberta oil sands company had just cause to terminate a worker who failed to report an incident with heavy equipment as required by policy, the Alberta Labour Relations Board has ruled.
In safety-sensitive work environments, employers have an obligation to react strongly to safety breaches, says Joseph Oppenheim, a lawyer at Carbert Waite in Calgary.
“The employer has an onus to treat the conduct with severe consequences, not only because it’s the right call from a legal standpoint but also from a strategic standpoint.”
Safety rules
Syncrude Canada is a producer of synthetic crude oil that operates the Aurora North mine near Fort McMurray, Alta., where oil sands are extracted and refined.
The work environment at the mine was safety-sensitive, so Syncrude had multiple safety policies and procedures relating to site safety, equipment operations, and mine operation. Employees received safety training after they were hired, at team and toolbox meetings, and at specific sites.
The worker was a heavy equipment operator at the mine. At the beginning of each shift and before each task, operators were required to do a loss prevention risk assessment. Syncrude policy also required employees to immediately freeze the site of an incident, shut down equipment, and report it to the supervisor in charge.
The worker had three incidents of discipline from 2017 to 2019, including two for failing to report injuries.
On Nov. 11, 2019, the worker was assigned to operate the largest excavator at the mine. The excavator’s body was attached to tracks and could rotate 360 degrees, with a boom and an arm with a shovel. The operator’s cab was to the left of the boom, resulting in a blind spot on the right side.
The worker was told to use the excavator to clean and smooth the surface of a crush pad – a large flat surface where haul trucks dumped product into a crusher. The crush pad was illuminated by light poles around the edge.
The worker and the front-line supervisor drove to the crush pad and performed a loss prevention risk assessment. The supervisor then left.
Struck light pole
At one point, the excavator’s arm hit one of the light poles. The worker didn’t report the incident and proceeded to continue cleaning the pad. However, the excavator’s shovel came into contact with some metal on the pad’s surface, so she stopped the excavator and contacted the supervisor.
While the supervisor drove to the pad, a truck operator radioed him to say that he had seen a light pole at the pad leaning. The supervisor noted the pole leaning at a 45-degree angle when he arrived and there was a noticeable decrease in the lighting level around the pole. There were excavator tracks going towards the pole, which had fresh marks on two sides.
An employee of a third-party contractor advised the supervisor that he had seen the excavator strike the pole. He then provided a statement saying that he observed the excavator’s shovel strike the light pole on the equipment’s blind side. The excavator stopped briefly, then resumed, hitting it a second time.
The contractor’s employee said it looked like the second hit was an attempt to straighten out the pole and it was not on the blind side. He didn’t know who was in the excavator and he didn’t know the worker.
The supervisor suspended the worker pending an investigation. The worker provided a statement saying that there were fresh marks on the leaning pole “so I must have hit it though I did not notice I did it.”
Investigation completed
Syncrude completed the investigation and met with the worker on Nov. 19. The worker maintained that she didn’t notice that she had hit the light pole and she would have stopped if she had. She wasn’t told that someone had witnessed the incident.
Syncrude considered the witness report, the marks on the pole, the tracks leading to the pole, and the fact that the light level had noticeably decreased, and determined that the worker was lying. It terminated the worker’s employment for breaching its policies and procedures relating to reporting an incident and dishonesty during the investigation.
Oppenheim notes that Syncrude had textbook policies and procedures in place and, without those, there might not have been just cause for dismissal.
“The employer had the right policies in place, they conducted an investigation that appeared to be done reasonably well, they gave the employee an opportunity to respond, they provided information to the worker – I don’t think the employee could credibly say that somehow the investigation wasn’t fair,” says Oppenheim.
“She did find out afterwards that there was an independent witness and the tribunal said it would be wise to tell the employee that, but at the end of the day, the employee made her bed and had every opportunity to be honest. She didn’t report the incident and then doubled down in the investigation.”
Doubled down on story
The worker filed a complaint for pay in lieu of statutory notice and an employment standards officer ordered Syncrude to pay the worker termination pay of almost $22,000, plus more than $2,000 for an “order of officer” fee.
Syncrude appealed to the Alberta Labour Relations Board, which included a statement by the witness. The witness now worked for Syncrude and operated the excavator, and in his opinion, the worker would have had to have noticed hitting the light pole.
The board found that the witness didn’t know the worker and had no reason to lie about what he saw, so he was credible. The witness report, combined with the physical evidence, supported the conclusion that the worker struck the light pole with the excavator and then attempted to hide it by trying to straighten it. The worker also failed to freeze the site and report the incident, and she was dishonest in her claims that she didn’t know that she had hit the pole.
The board determined that the worker’s conduct caused her continued employment to be incompatible with the responsibilities of a heavy equipment operator. Syncrude had just cause for dismissal, said the board.
Safety a factor
Safety was a factor in the board finding that the employment relationship was irreparable, as the evidence showed that Syncrude took workplace safety seriously, says Oppenheim.
“To my mind, it’s a common-sense issue – operating these huge machines, there’s been a long history of accidents causing severe injury and death as long as production has been going on in the region,” he says. “There’s been a real push by the government putting occupational health and safety regulations in place, and these mine operators have a lot to lose if they don’t put in place the right safety precautions.”
“The consequences are severe if they fail to do that – fines, criminal liability, the risk of shutting down,” adds Oppenheim. “The stakes are high and sophisticated organizations like Syncrude have layers of policies in place to ensure that their workforce maintains a safe workplace – I would argue that there’s even more of a need [for safety] where an employee is dishonest in reporting an incident like this.”
The board found that the light pole incident was sufficient to provide just cause due to the worker’s dishonesty and the importance of safety, but her prior incidents of discipline showed that Syncrude emphasized safety and the worker was aware of the need to report incidents, said the board in revoking the order to pay termination pay.
Dishonesty pays
Making an honest mistake rarely provides just cause for dismissal – unless it comes after repeated warnings from previous similar infractions – but dishonesty is always considered serious, says Oppenheim.
“From an employee’s perspective, you’re much better off acknowledging what happened,” he says.
For employers, Oppenheim stresses the importance of conducting a fair and proper investigation into a safety breach or any kind of misconduct.
“Conduct a proper investigation before actually taking steps to terminate employment or issue any discipline,” he says. “You have to give the employee the opportunity to know of misconduct that they’re being accused of and a fair opportunity for them to respond to that and give their side of the story.”