Law Times

Law Times • April 22, 2013 NEWS Page 3 Arbitrator upholds termination over safety breaches Ruling on firing of 37-year worker signals recognition of companies' statutory duty BY JULIUS MELNITZER For Law Times A n Ontario arbitrator's decision to uphold the termination of a long-serving employee with 37 years of service signals a growing recognition of the dilemma facing employers at risk of serious consequences for failing to meet their statutory obligations under occupational health and safety legislation. "The case is significant  because it recognizes the growing importance of the regulatory regime around health and safety, including the underlying policy considerations," says Kevin Coon of Baker & McKenzie LLP who represented the employer, lead recycling company Tonolli Canada Ltd. "This has been and remains  a  dilemma  for many employers as they face significant penalties for OHSA [Occupational Health and Safety Act] violations, yet adjudicators regularly will not enforce the discipline for H&S that employers set out." The employee, Frank Marsiglia, aged 58 and with 37 years' seniority, was a member of the United Steelworkers Local 9042. He had been subject to extensive discipline related to health and safety that included warnings and suspensions prior to two culminating incidents on consecutive days.  The culminating incidents involved Marsiglia's failure to wear mandatory safety equipment on the job and subsequent insubordination. Although the griever expressed remorse, his evidence suggested he didn't fully accept the company's policies as appropriate and necessary. "It takes an appropriate timely acknowledgment of the misconduct and an apology which fully accepts responsibility [and] demonstrates true remorse to raise the mitigation value of lengthy seniority to a level sufficient to induce an arbitrator to seriously consider reinstating a discharged significance of the difficult occupagriever guilty of serious or repeated tional health and safety regime Ontario health and safety misconduct," wrote employers operate in. He cites a recent arbitrator George Surdykowski. case in which the Ontario Court of In the arbitrator's opinion, the grievAppeal overturned a termination for er hadn't demonstrated that type of health and safety violations. remorse. Rather, he found the griever "What's clear on a reading of that would likely reoffend. case is that the court applied basic "The evidence shows that the griever employment law principles without has previously promised and failed to giving sufficient weight to the public do better," Surdykowski noted. policy and employer's liability related "The griever has had many chancto health and safety legislation," he says. es to demonstrate to the company Jeffrey Goodman of managethat he can continue to be a safe and ment-side boutique Hicks Morley useful employee. He failed to so demHamilton Stewart Storie LLP agrees onstrate to one of the most  patient that Tonolli Canada Ltd. v. United employers I have seen in my more Steelworkers and its Local 9042 is a than 25 years as a labour relations adjudicator. Nor has the griever dem- 'Employers who invest in health and safety step in the right direction. will ultimately prosper but to do so they "This case is important because it onstrated any rehabilitation potential have to walk the talk and impose proto me. I have no confidence that if re- gressive discipline leading to termination if reinforces the principle that there are certain types of misconduct, such as instated the griever would return to necessary,' says Elizabeth Mills. health and safety infractions, that can the workplace as a productive safetyconscious employee respectful of the company's rea- overwhelm even significant mitigating factors, such as age sonable health and safety expectations and an employ- and long service," he says. "This is perhaps most true in health and safety cases ee's responsibilities and obligations to other employees where the employee can by their misconduct place not and the company in that respect." The only significant mitigating factor, in the arbitrator's only themselves in danger but their fellow employees as well." view, was the griever's 37 years of service. Elizabeth Mills, president and chief executive officer "In the circumstances of this case, I do not consider [the griever's seniority]  just and reasonable or  other- of Workplace Safety & Prevention Services, believes the wise sufficient to induce me to exercise my discretion due diligence required by statute goes hand in hand with to substitute a lesser penalty for discharge and reinstate appropriate disciplinary action. "Employers who invest in health and safety will ultihim as an employee of the company and I decline to do mately prosper but to do so they have to walk the talk and so," the arbitrator concluded. According to Coon, courts and arbitrators adjudicat- impose progressive discipline leading to termination if LT ing disciplinary cases have been slow to recognize the necessary," she says. Employers grappling with new standards for mental health BY ANASTASIA MOSKVITINA For Law Times W hile a new standard for workplace mental health is voluntary, employers will face some pressure to implement it, according to a labour and employment lawyer. "Even though it's a voluntary standard, the general practice is if you don't implement it, it will call into question the employer," says Melany Franklin of Borden Ladner Gervais LLP. At a recent event in Toronto on the new standard for workplace psychological health created by the Mental Health Commission of Canada, Franklin and colleague Maria Gergin spoke about recent developments in the area. As part of their presentation, they provided a room full of employers with examples of decisions by the courts and arbitrators in cases involving mental-health issues. Some of the guiding principles include sharing the responsibility for mental health among all stakeholders, building mutually respectful relationships, and maintaining the confidentiality of sensitive information. Among the examples cited during the presentation was a Workplace Safety and Insurance Board tribunal decision dealing with an educational assistant who was wrongfully dismissed for striking a child. Despite her exoneration, she was unable to return to work because she was experiencing "debilitating anxiety" about her termination as she "has experienced childhood trauma and stress in her life," said Gergin. The woman filed for mental stress benefits, but the tribunal didn't know how to reconcile the complaint violence. "The realbecause the school ity is that assessments board had the "added rewill involve individuals quirement that the event who have or may have in question must presmental-health issues," ent a physical threat to said Gergin, who noted the worker's well-being." the tension experienced In the end, the tribunal by employers between struck down the board's their duty to assess the added requirement and risks and their simultaallowed the claim. neous obligation to acThe decision "sudcommodate employees denly seemed to with mental disabilities. broaden the scope for An arbitration matter the types of events for mentioned by Gergin ilwhich workers can lustrates the tension. The claim mental stress bencase involved an emefits and for some time 'Even though it's a voluntary standard, the there was a concern general practice is if you don't implement ployee who showed "very that this would open up it, it will call into question the employer,' aggressive and volatile behaviour," said Gergin. the floodgates to men- says Melany Franklin. "On one occasion, tal stress claims for just the worker took a pressurized water hose about anything," said Gergin. Another decision involved a cleaner and sprayed both the supervisor and a asked to work in a different location than nearby customer. . . . This person would she normally did. The cleaner claimed she yell, he would routinely walk out of meetcouldn't work in the building as she felt ings, he would use profanities, and generscared, trapped, and alone there, accord- ally demonstrated that he was not capable ing to Gergin. But the worker's reasons for of controlling his behaviour." Eventually, the employer dismissed her fears were unclear. "The requirement that the event be objectively traumatic the employee and requested a psychiatric still limits the scope for the types of events assessment before he could return. But the arbitrator found the case for which a worker may claim mental stress benefits," said Gergin. "That's what didn't meet the test for going that far. "This particular employee had already we should be expecting moving forward." As the case law continues to develop in been disciplined for the type of behavthe area of workplace mental health and iour that the employer was now claiming with the advent of Bill 168, the standard may be as a result of some mental-health will "assist employers in promoting well- issue," said Gergin. "So the arbitrator in essence said, 'You being in the workplace," said Franklin. "It is flexible enough that organizations can can't treat this type of behaviour as both culpable and non-culpable.'" make it their own." However, medical evidence is key as This is especially important when it comes to risk assessments for workplace "there needs to be a nexus found between the www.lawtimesnews.com employee's actions and the mental-health issue," said Gergin. In a 2012 arbitration matter, an applicant lost his job for failing to show up to work. His wife and children were in Japan during the 2011 earthquake and he claimed he had been experiencing extreme worry and anxiety. The employer made many unsuccessful attempts to reach the applicant before deciding to fire him. The worker then made a claim to the Human Rights Tribunal of Ontario. But the tribunal found "the medical evidence that was used to corroborate this employee's anxiety attacks confirmed that the employee experiences symptoms but it didn't really explain why this employee was unable to at least pick up the phone or write an e-mail and let the employer know what was happening," said Gergin. "It just wasn't that type of condition." However, an employer can still terminate an employee with mental-health issues when a nexus exists. A 2012 case, for example, dealt with a worker on a production line in a safety-sensitive position, said Gergin. After a decade of work, "this person became very aggressive, erratic . . . generally appeared very angry most of the time, and on one occasion he showed up at the plant and threatened his supervisor." While the worker's doctors said he could return to work with proper medication, the arbitrator found that "an individual who suffers from 'occasional brief psychotic outbreaks' cannot be reinstated to employment," said Gergin. "The employer said there is no way, practically speaking, that we can monitor and ensure that this person is always taking his medication and always following his treatment plan and we can't shield him from the reality of our workplace." LT

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