The corporation’s thorough written health and safety system has been detailed in all respects to the court in an effort to establish due diligence. Yet several company supervisors, under cross-examination by the prosecution, have now admitted that they kept telling workers about particular safety rules relevant to the accident, but did not record this or engage in progressive discipline. One even admits that the department was aware that workers engaged in the unsafe practice, but supervisors never took steps to impose discipline.
It now seems that your iron-clad defence of due diligence is slipping away, along with your reputation for safety excellence, and that the corporation will be convicted and assessed a significant penalty.
It is a favourite tactic of the prosecution in cases alleging violations of health and safety standards to seek responses from supervisors about whether unsafe practices resulted in progressive discipline, or any discipline at all. Too frequently, the response sounds something like, “Yes, we told them, we kept reminding them, we told them until we were blue in the face. What more could we do?”
The answer, in a word, is discipline. Yet, if most corporations asked their front-line supervisors whether they discipline for safety violations, and if not, why not, their responses might be, “I don’t know how to discipline.” Or, “If I discipline, I am not going to be backed up by senior management, and when the union complains, the discipline is going to be removed anyway.”
Progressive discipline for health and safety infractions is not dramatically different from discipline for violations of other fundamental workplace rules. Yet a supervisor who might act quickly to impose progressive measures for lateness, absence or insubordination becomes paralysed when faced with the prospect of imposing discipline for a violation of a safety rule. But it is crucial for companies to begin to address some of these root causes of confusion and inaction on the part of front-line personnel responsible for enforcing the company’s health and safety system. (See “Integrating Discipline,” page 34.)
THE COURTS MAY SURPRISE YOU
Why discipline? Health and safety legislation across Canada requires that workplace parties such as supervisors and employers “ensure” or “require” that health and safety standards be met. The need for discipline is front and centre in health and safety legislation, and, in court, it is considered one of the few defences available for a violation of those requirements.
In the very first case that recognized that a corporation or individual could potentially avoid conviction for violating environmental or health and safety requirements with a defence of “due diligence”, the Supreme Court of Canada in Regina v. Sault Ste. Marie1 set out two often-quoted expectations that must be present to establish the defence:
(a) the party charged with the offence must have developed a “proper system to prevent the commission of the offence”; and,
(b) must have taken “reasonable steps to ensure the effective operation of the system”.
Since this time, enforcement of safety rules and policies has been repeatedly stressed as a key component of due diligence. An organization may have spent significant time and resources in developing a system for the prevention of contraventions, including rules, policies, training, and monitoring. Yet even if all of the other elements of a due diligence defence can be demonstrated in court, lack of ongoing enforcement of the system is treated as a lack of complete due diligence and the defence will fail on this ground.
In a recent prosecution case before the Ontario Court of Justice (Provincial Division) Regina v. Wilson’s Truck Lines Limited2, the court, in considering whether a corporation had taken every reasonable precaution relating to procedures at a loading dock after a worker, working alone, was crushed between a vehicle and a concrete loading dock, stated “the dock supervisor agreed that there were no written warnings, dismissals or suspensions for breach of safety procedures. He also never told any workers if they were on the ground without a spotter, that they would be disciplined.” The court concluded that admonitions, if any, were verbal, and “there was no discipline or action if any rules were breached… the supervisor admitted that there was no written censure, no firings, demotions or suspensions. The atmosphere was very laissez-faire.” The company was convicted.
What about positive reinforcers, such as safety incentives or rewards, that are an important part of some programs? While they may have their place, there cannot be complete reliance on positive inducements as the exclusive focus of a safety program. Too much focus on rewards for particular time periods with “no accidents” may arise from lack of appreciation that there is not necessarily any correlation between an accident “never happening before” and due diligence. Incentives in the absence of a detailed and enforced health and safety system will never be sufficient evidence of due diligence.
While many companies and their supervisors can accept that courts expect discipline as part of due diligence, there remains a pervasive view that when they act on this premise, their efforts are quickly overruled by other decision makers. Particularly for employers in unionized workplaces, there is a perception that the agenda of arbitrators is to remove discipline, wherever possible, even when the discipline is for serious safety infractions. This is a myth which needs to be addressed squarely. Both courts and tribunals embrace the concept that an employer may progressively impose discipline against employees.
A few select comments from arbitrators considering union grievances of disciplinary responses in the safety context may assist in dispelling this myth. In a Manitoba case involving Dominion Malting Ltd.3, the arbitrator stated: “The safety of the workplace at all times must be of paramount importance, both to the employer and to the employees… The employer, and each and every employee, without exception, must meticulously comply with every safety directive. That is an obligation imposed not only by the employer, but certainly by the legislation…” In Dominion, the termination of a grievor for failure to follow lockout procedures was upheld, after it was established that he had been suspended in the recent past for breaching lockout procedures, and that he had been trained in the procedures.
In a construction industry grievance arbitration before the Ontario Labour Relations Board involving Ontario Hydro4, following dismissal of a grievor for possession of marijuana at a nuclear facility, it was stated: “The employer is under a statutory obligation to maintain a safe workplace and to take reasonable steps to ensure that employees are not exposed to preventable risks — whether such risks arise from dangerous machinery, noxious substances or unsafe work practices. One element in a prevention program is the imposition of discipline to deter employees who might be disposed to break the rules — especially when employees know that the risk of detection is low and the employer’s problems of proof can be significant… There is also much to be said for the company’s submission that “zero tolerance” and the “certainty of discharge” are both necessary to effect general deterrence; and that the workplace safety regimen of this nuclear facility would be undermined if a drug-smoking construction worker were able to escape responsibility for his behaviour.” The grievor, a relatively new employee with a clean record, had been caught taking marijuana to a remote location of the facility. He admitted to smoking the substance during working hours on numerous occasions over at least a four- to six-week period. The arbitrator, after stating strongly that, “The grievor acted with callous disregard for his own safety and for the safety of his fellow workers; he exposed the company to the prospect of serious criticism and commercial consequences…” upheld the discharge.
The apparent irony of unions coming before them to argue that there should be no penalty for a safety infraction, when one of the mandates of unions is to seek improvements to workplace health and safety for its members, has not been lost on arbitrators. In a decision involving the Corporation of the City of Brampton5 the arbitrator commented: “The general concern for safety in the work environment is attested to by the vigorous campaign being conducted for safety legislation in which unions are more than disinterested parties. Given this concern and background, we find that the argument of the union that the grievor’s discipline be completely eliminated has a hollow ring. It is our view that the company, the union and the employees should be vigilant in their observance of safety requirements.”
As can be seen, expectations of due diligence by courts and arbitrators are echoed in expectations of progressive discipline. However, only the court considering a wrongful dismissal action or a tribunal considering a grievance will be concerned about the impact on the individual employee and whether discipline was properly and fairly imposed. In contrast, a court dealing with a prosecution case and considerations of due diligence is never concerned with whether the discipline was fair, consistent, based on the facts, or even upheld by a court or a board of arbitration subsequently considering the issue.
Rather than becoming confused and overwhelmed by these two separate considerations, management must consider them together and balance them. On the one hand, discipline for safety infractions must occur and be sufficient to satisfy a court that discipline is integral to your health and safety system. On the other hand, discipline must not be so onerous or unfair that it violates important principles developed to protect individual employees.
MAKING DISCIPLINE WORK
With arbitrators and other decision makers increasingly recognizing employer obligations under health and safety legislation, why does it seem that so many disciplinary responses of employers are overruled? We all know of cases in which a disciplinary suspension was reduced or a discharge replaced with reinstatement. We may even have read of cases where the employer’s response in a non-union context was ruled a “wrongful dismissal”.
A number of principles have been established by decision makers as preconditions to successful and appropriate discipline (see “Key Aspects” page 36). Among them is the expectation that the rule being enforced has come to the attention of the employee affected, through training and orientation, posting of rules or safety reminders. If there is no sign-off or documentation to establish that the affected employee knew or received notification of the rule, the company is unable to realistically continue in its efforts to enforce the rule against the employee in arbitration.
Rules must be consistently enforced. This includes constant enforcement, as well as consistency of treatment of all employees at the workplace. Lack of consistent application is another of the most frequent causes of an employer’s disciplinary response being reduced. For example, in Alcatel Telecommunications Cable (Winnipeg Plant)6 a worker received a one-day suspension after placing his hands in moving equipment which had not been locked out and was not fully stopped. Evidence was called to suggest that other individuals who had committed serious infractions, such as forklift operators backing up carelessly, or running into power panels, or employees attending work under the influence of alcohol, had not been treated with similar severity. The arbitrator stated strongly that the grievor “breached his duty to operate the machine in a safe and prudent manner… There is a moral, as well as a legal obligation, on employers and employees to maintain a safe workplace and to work in a safe and prudent manner… However, the evidence is undisputed that there is a progressive discipline policy and that other individuals who have committed safety breaches have had discipline imposed at the first step (i.e., counseling). In this case, there was a one-day suspension imposed. I must accordingly consider whether there was discriminatory treatment against the grievor.”
Because of inconsistent application of the progressive discipline procedure, the suspension was reduced to a written warning. Interestingly, the arbitrator noted, “I hasten to again add that I do not think the one-day suspension was an unreasonable penalty and, as stated earlier, if it was not for the progressive discipline policy which had been followed on a different basis in the past, I would not have reduced the penalty.”
The final most important matter scrutinized by decision makers is the amount of discipline. The appropriate penalty in any given case will always be reviewed from the perspective of progressive discipline; that is, because discipline is to be corrective, not punitive, progressively more significant penalties are imposed, with more severe penalties following repeat occurrences. The only permitted exception may be for a safety infraction having significant potential consequences. For one-time violations of matters such as lockout, or driving infractions where both worker and public safety may be jeopardized,”… some boards of arbitration have unanimously held that in safety matters, even in the case of long-service employees, it is not unreasonable to by-pass the usual progressive discipline of giving warnings before suspensions and moving directly to suspensions for a first offence.” Others have said: “…where the potential consequences of the breach are severe… the employer has the right to by-pass the normal progressive disciplinary response.”7
Decision makers also review a range of mitigating factors, including long service, a spotless prior disciplinary record, immediate apology and commitment to change behaviour on the part of the employee, or a low risk of potential injury as a result of the safety infraction. In a British Columbia arbitration case involving Northwood Inc. (Upper Fraser Division)8, for example, discharge for an extremely serious infraction of failing to lock out a conveyor was reduced to a four-month suspension. The contrite worker established that although he had been trained in procedures, his training left him unclear about the situation he had encountered, and he had panicked in attempting to respond.
Decision makers also look to aggravating factors which would include actual or potential injury to the worker or others, short service, lack of admission or contriteness, or the fact that the matter is a repeat infraction for the employee. In Re Casco Co. Inc.9, the dismissal of an employee found smoking in an area where smoking was prohibited due to risk of explosion was upheld. The arbitrator placed particular emphasis on the fact that the grievor looked his supervisor “straight in the eye” and denied smoking despite clear evidence taken on videotape, and continued even in the arbitration hearing to state his own assessment that it was safe to smoke in the area in question, despite clear available objective evidence.
The imposition of discipline is not a simple task, particularly in a unionized environment where disciplinary decisions are subject to arbitral review, and a series of subtle legal considerations must be applied to issues of when to discipline and how much is appropriate. It is crucial for employers to have some insight into the attitudes of courts and tribunals, and ongoing training in how to balance expectations of due diligence with fair and progressive discipline. Failure to tackle the attitudes, frustrations and confusion of front-line supervisors responsible for discipline will unfortunately, and inevitably, lead to repetition of the courtroom scene described at the outset of this article.
Cheryl A. Edwards is a partner with the management labour and employment firm of Stringer, Brisbin, Humphrey in Toronto. A former prosecutor with the Ontario Ministry of Labour, her management practice emphasizes occupational health and safety advice,
representation and in-house training.
1 (1978) 85 D.L.R. (3rd) 161(S.C.C.)
2 Unreported decision of Justice of the Peace McNish, May 22, 1998, available on quick-law at  O.J. No. 3219
3 Unreported decision of Arbitrator J. M. Chapman, November 21, 1995, available on quick-law at  M.G.A.D. No. 73
4 Unreported decision of Board Chair R.O. MacDowell, August 8, 1997, available on quick-law at  O.L.R.D. No. 2888
5 (1978) 19 L.A.C. (2d) 237
6 Unreported arbitration decision of J.M. Chapman, July 4, 1996, Winnipeg, available on quick-law at  M.G.A.D. No. 50
7 See Alcatel, above, at pages 12 and 13
8 Unreported arbitration decision of A.P. Devine, September 30, 1998, available on quick-law at  B.C.A.A.A. No. 469
9 Reported at 38 L.A.C. (4th) 353